RAFAQAT ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL419/2017

[2018] HKCFI 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 419 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani national who was arrested by the police for illegally remaining in Hong Kong on 24 September 2017.  He was convicted of Immigration offences and served a term of imprisonment. On 14 January 2008 the applicant lodged a torture claim which later was taken to be a non-refoulement claim and assessed under the Unified Screening Mechanism which commenced on 3 March 2014.  The Director of Immigration (“the Director”) rejected the applicant’s claim on 16 October 2014 and 24 January 2017.

2.  The applicant did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) after the Director’s first decision and that appeal was dismissed on 29 November 2016.  The applicant did not seek leave to apply for judicial review of that decision.

3.  On 29 December 2016 the Director wrote to the applicant and invited him to submit additional facts if he had any, that he considered relevant to his claim that would relate to his rights under the HKBOR, including right to life under Article 2 (“BOR 2 risk”) in case he had omitted any relevant facts previously.  The Director required him to submit those facts within 14 days.  The applicant did not reply to that letter.  On 24 January 2017, the Director issued a Notice of Further Decision which informed the applicant that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR 2) upon his return to Pakistan; his BOR 2 risk claim failed.  The applicant lodged an appeal/petition of this decision to the TCAB.  The TCAB dismissed that appeal/petition on 30 June 2017.

4.  The applicant filed a notice of application for leave to apply for judicial review of that last TCAB decision on 18 July 2017.  This application only concerned the TCAB’s dismissal of his appeal relating to his BOR 2 risk claim.

5.  The adjudicator of the TCAB set out the chronology of the applicant’s claim and referred to the facts of the applicant’s case as having been summarised in the TCAB decision dated 29 November 2016.  In fact, not only was it summarised in detail there but also by the Director in his decision dated 16 October 2014.  The adjudicator did not need to repeat it.

6.  The adjudicator noted that the applicant had no further information to submit that related to a BOR 2 risk which meant that there were no new facts to consider, no issue of law raised or any matter of credibility to resolve.  The evidence had not changed nor had the applicant’s case evolved.  In the applicant’s notice of petition to the TCAB he repeated a summary of his case and repeated that his life was in danger if he were to return to Pakistan.  There were no grounds of appeal as such.

7.  The adjudicator considered Article 2 and its subsections.  He considered the fact that the Court of Appeal has said in the past that in situations like this when the applicant’s case is abundantly clear to the adjudicator and has not changed then, there is no need or justification to organise yet another oral hearing to re-canvass exactly the same facts previously dealt with before.  The adjudicator considered the applicant’s evidence, claim, submissions in his notice of appeal and his previous findings as well as Article 2 and found the applicant did not succeed in establishing a case under BOR 2; his BOR 2 risk claim failed.  He confirmed the decision of the Director.

Leave to apply for judicial review

8.  The supporting affirmation correctly states in the introduction that the applicant seeks leave to judicial review the adjudicator’s decision dated 30 June 2017.  Yet in paragraph 5 it refers to the first decision by the TCAB dated 29 November 2016 and follows that with grounds of review.  In the following three paragraphs it is unclear what decision the applicant is referring to because no particulars are given.

9.  In paragraph 9 the applicant does become specific and submits he did not provide additional facts for a BOR 2 claim because after receiving the letter of 29 December 2016 he approached the duty lawyer scheme which refused to give him further assistance and he was in the dark what information to submit therefore, submitted nothing.  In paragraph 16, he contradicts himself and claims he wanted to provide additional facts but he did not receive any letter from the Immigration Department.  There is no merit in this ground.

10.  He complains that the dismissal of his BOR 2 claim was unfair without any interview or hearing.  I am satisfied the adjudicator’s reasons for considering the appeal/petition on the papers are proper and reasonable.  There is no merit in this ground.

11.  There are other complaints against the adjudicator that refer to his first decision but relate to his findings of fact and it would appear credibility.  There are accusations of the adjudicator relying on speculations and the interpreter not interpreting properly but no particulars are provided.  There are no merits in these accusations.  There is an attempt to introduce, I assume, new evidence that was not before the TCAB of his enemies attacking his family not long ago and making recent false report against him to the police but these are matters I will not take into account.

12.  I find the adjudicator’s decision to be without fault.  I do not find any ground that shows there was an error of law by the adjudicator nor any evidence of procedural unfairness.  There is no failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test.

13.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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

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