MOHAMMED SHANWAZ v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2822/2018

[2019] HKCFI 2891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2822 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 decision 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 an Indian national. He arrived in Hong Kong on 7 January 2014 as a visitor and was permitted to stay until 21 January 2014. He overstayed and was arrested by police on 8 February 2014. He was referred to the Immigration Department for further investigation. On 10 February 2014, he lodged his non-refoulement claim. A removal order was made against him on 24 March 2014.

3.  His reason for his application is that if refouled, he would be harmed or killed by his creditor Mohammed Salaudin (“Salaudin”).

4.  In his statements given to the Director and the Board, he claimed that in 2013, he borrowed a debt from the loan shark Salaudin for his garment business. The interest was 10% quarterly. He was unable to pay the interest after the first payment. Between 2013 and 2014, Salaudin took a number of people, carrying hockey sticks went to see him and demanded repayment of the loan and the interest. He was unable to pay and he was assaulted by those people with hand and on one occasion, with hockey sticks, so badly that he had to seek medication. Those people threatened to kill him. He had reported the matter to police. But the police gave him no assistance. He moved to live in his friend’s place in order to avoid Salaudin. His friend advised him to leave India because Salaudin had located him. He took his friend’s advice and came to Hong Kong.

The Director’s Decision

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

a.     risk of torture 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 13 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 2 August 2018.

8.  By Decision dated 30 November 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and found that what he said did not amount to torture and that his evidence was not reliable and that there was no substance in his non-refoulement application. [20] The Adjudicator set out the reasons why he did not believe the applicant in paragraph 21 of the Board’s Decision. The Adjudicator further said that he had contradicted himself in many aspects that he tried to make up a story which backfired. [22]

10.  It further came to a conclusion that even if it accepted that there was a real risk in respect of his claims, he would have state protection [28] and that he would be able to relocate himself to another part of Pakistan [50].

11.  In his Form 86 under Order 53, rule 3(2) 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.

12.  In his affirmation in support of his application dated 10 December 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 the appeal;

3.     the Adjudicator did not consider his case afresh and he determined his case as one of the many cases he had dealt with;

4.     he did not understand the Board’s Decision as no assistance was rendered to him; and

5.     it was unfair to him as other applicants obtained legal assistance – breach of high standard of fairness.

DISCUSSION

The Director’s Decision

13.  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.”

14.  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

15.  The applicant appeared before me. He confirmed that he was able to express his views and tell his story freely and fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. An interpreter at the Immigration Department had explained the Hearing Bundle to him. His friend had explained the Board’s Decision to him.

16.  I put the Board’s findings to him and asked if he had any comments on them. He said that he had no comments.

17.  He 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.

18.  Grounds (1) and (4) have no substance because he did not state what assistance he had asked for from any of the government departments: the Immigration Department, the Board, the Duty Lawyer Scheme or the District Offices. High standard of fairness requires him to take the first step himself before he could complain. They are inconsistent with the evidence before this Court too.

19.  Ground (2) obviously fails in view of the above authority.

20.  Grounds (3) is his opinion without any evidence to support it. It is true that the Adjudicator had mentioned in the Board’s Decision that it was one of the cases he had assessed on the same reasons for non-refoulement claim. Such remark would not affect his decision because he had set out all his reasons why he did not believe the applicant. In particular, he said in paragraph 21(vi) that the applicant told him that he was living in the park and was looking for food. The Adjudicator pointed at his gold watch and asked him to explain. He simply gave an embarrassing smile.

21.  Grounds (5) is not sustainable. Each case must be assessed on its own merits. There is no use to compare cases without any factual background of the cases.

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

CONCLUSION

23.  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