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

HCAL1719/2018

[2019] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1719 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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave 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 arrived in Hong Kong on 7 November 2013 and was arrested by police on the same day. He was referred to the Immigration Department for further investigation on 9 November 2013. He lodged his non‑refoulement claim on 21 November 2013.

3.  His reason for his application is that he would be killed by the people of Pakistain Muslim League (N) (“PMLN”) because he was a well-known supporter of Pakistan People’s Party (“PPP”).

4.  In his statement given to the Director, he claimed that he was a supporter of PPP since 2011 as he worked as a driver for one of its members. In 2013, he was approached by members of the PMLN. They slapped him and told him to quit from PPP. He quitted. But he was afraid that PPP might take revenge on him. He kept a low profile. His friend advised him to come to Hong Kong. He took his advice.

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 20 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 17 May 2018.

8.  By Decision dated 2 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case carefully and found that the applicant’s evidence was riddled with inconsistencies and it found:

“68. Having regard to all these matters, I am not satisfied that the Appellant’s claims are truthful. I find that the Appellant is not a witness of truth. I find that the Appellant has fabricated his claims in order to be granted protection and to extend his stay in Hong Kong. …

 90. In light of the findings above, I consider that the Appellant would not be at risk of any harm if he were to return or be returned to Pakistan. I find that there is not a real risk the Appellant would face any harm should he return to Pakistan for the reasons he has claimed.”

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

11.  In his affirmation in support of his application dated 22 August 2018, the applicant relied upon the following grounds:

(1)  the Director’s Decision and the Board’s Decision are unfair;

(2)  he was not provided with legal assistance or language assistance for his appeal and this application;

(3)  the Hearing Bundle was given to him shortly before the appeal hearing and it was without translation, so he was confused at the appeal hearing;

(4)  the Board’s Decision was not read to him and he did not know the reasons of the Board;

(5)  the Director had merely adopted a formula and biased approach in assessing his claim as he had adopted the same Country of Origin Information which was adverse and in favour of his claim; and

(6)  he wished this Court to consider that he had fasting and therefore was not in full capacity of his mental faculty when he answered the Board’s question, giving inconsistent answers to the Adjudicator, who considered he had fabricated a case.

DISCUSSION

The Director’s Decision

12.  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.”

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

The Board’s Decision

14.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

15.  I put the Board’s findings above to him and asked him if he had any comments on them. He was unable to say why his fasting affected his evidence. He said he had no comments and if the government decided to send him back to Pakistan, he would leave here.

16.  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.

17.  Grounds (1) and (5) are his opinions without any evidence in support of them. They do not stand.

18.  Grounds (3), (4) and (6) are simply not true as they are inconsistent with what the applicant said in court. They fail.

19.  As to ground (2), the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 had decided that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had free legal representation provided by the Duty Lawyers Scheme at the screening stage. This ground fails.

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

CONCLUSION

21.  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