NAEEM BAJWA MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2607/2018

[2020] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2607 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Pakistani national. He came to Hong Kong as a visitor in 2000 and he overstayed. He was arrested by police and was deported by a removal order. He came to Hong Kong again in 2001 using a false name. He was charged and convicted of making a false representation as to a false identity; breach of condition of stay and breach of suspended sentence. He was sentenced to 7 months’ imprisonment and was deported under a Deportation Order on 11 September 2002. Ten years later in 2012, he came to Hong Kong again illegal through China by boat. He was arrested by police on 21 November 2012 and was convicted of illegal remaining in Hong Kong. He was sentenced to 15 months’ imprisonment. He made his non-refoulement claim by way of written signification dated 16 September 2013 and 21 February 2017.

3.  His reason for his application is that if he was refouled to Pakistan, he would have a life threatening risk as he is a supporter of the Pakistan Tehreek-e-Insaf (“PTI”) and the people of its rival party Pakistan Muslim League (Nawaz) (“PML-N”) would harm and kill him. He also said that the Pakistan Police would arrest and prosecute him for framed‑up cases. He had refused to join PML-N.

4.  In his statements given to the Director and the Board, he claimed that in August 2012, he assisted PTI to prepare a speaker stage for a meeting where the PML-N people came and tell him to stop. He refused and they hit him with wooden sticks. He was injured and had to stay in hospital for 3 or 4 days. A month later, he also helped PTI to prepare for a meeting. Ten odd PML-N supporters came and told him to stop. He refused thereupon they attacked him and his people, including his brother, who was shot by them. He escaped and hid himself up. He learned that his brother died because of the shot. He left Pakistan for China from where he sneaked into Hong Kong.

The Director’s Decisions

5.  The Director considered his application in relation to the following risks:

a.     Torture risk under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 7 August 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 6 September 2018.

8.  By Decision dated 12 November 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.  The Board had a very lengthy report on the finding of the facts and the reasons in support of his findings. However, the Board decided to hear the evidence afresh. It did not rely upon the finding of the facts by the Director. But it did not give any reason for its decision.

10.  The Director assessed the applicant’s case, based upon the facts he alleged and came to the conclusion that the chance that he would be tortured if he returned to Pakistan would be slim [26] and his injuries did not fulfil the meaning of torture within the context of section 37U of the Ordinance [37]; that BOR 2 risk was simply not engaged [28]; that  there was no evidence that his fear of Persecution Risk was well-founded [34 &35]; that state protection should be available to him [21] and finally internal relocation was an option open to him [22].

11.  The Board found that it did not believe that he was shot and his brother was shot dead. The other major events which caused him to leave Pakistan as accepted by the Director were also accepted by the Board.

12.  The Board found that the risk of torture if he returned to Pakistan was low [144]; state protection would be available [164 & 165]; the applicant would not have the BOR 3 risk as state protection was available [186]; there was no evidence in support of Persecution Risk [198]; internal relocation was an option open to him [203] and BOR 2 risk was not applicable to the applicant’s case [217].

13.  The Board came to the same findings in respect of the claims the applicant raised for his application.

14.  In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

15.  In his affirmation in support of his application dated 19 November 2018, the applicant relied upon the following grounds:

(1)     he was not provided with language assistance;

(2)     he was not provided with legal assistance for this application;

(3)     the Director and the Board did not treat the Country of Origin Information (“COI”) fairly as they did not give sufficient weight to such information that assisted his claim, but just gave weight to the information that held against his claim;

(4)     he considered that the Director was adopting a formula and biased approach to turn down the claims for non-refoulement;

(5)     it was unfair, unreasonable and illogical for the Board to give no weight to his evidence, in particular, his documentary evidence, which in inconsistent with the approach set out in Shafqat Ali v Betty Kwan & Others (unreported, HCAL 74/2012, 17 December 2013), adopting the English authority that the decision-maker must not exclude any matters form its consideration when it was assessing the evidence unless it can safely discard them because it has no doubt that they did not in fact occur;

(6)     he cited an example of the Board giving his reasons in paragraph 70 of its Decision where he said that the Board was unfair in rejecting his claims about the “He was reminded that the interpreter would read back the record to him. He explained that the interpreter had only translated in “a short cut”. He was asked since he did not know English, how he knew the interpreter had not fully translated what he had said.” …

(7)     the Board’s Decision was not translated to him whereas in other cases, there was translation for other claimants, so this is unfair to him; and

(8)     the Director had not set out his explanation as to how he exercised the balancing exercise in considering the COI.

DISCUSSION

The Director’s Decision

16.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

17.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

18.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His friend had explained to him the Hearing Bundle. His friend had also explained the Board’s Decision to him. He considered that he had had a fair hearing before the Adjudicator.

19.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

20.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

21.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

22.  The applicant does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

23.  Grounds (1), (2) and (7) are inconsistent with what he said in court. They are simply not true.

24.  Grounds (3), (4) and (5) are his opinions without any evidence in support of them. They fail.

25.  Ground (6) fails as the applicant is unable to identify in what respect the Board had been followed the approach of the case and caused prejudice to him.

26.  Ground (8) does not sustain because the Director had to apply his commons sense, expertise and experience to make the assessment. The applicant has not even identified in what respect he considered the Director was unfair or illogical in his assessment of the COI.

27.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1