IFTIKHAR UDDIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2522/2018

[2020] HKCFI 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2522 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 a Pakistani national. He arrived in Hong Kong on 15 December 2012 through China illegally. He was arrested by police on 18 December 2013 and was referred to the Immigration Department on 20 December 2013. On 22 December 2013, he lodged a torture claim.

3.  His reason for his application is that if refouled, he would be harmed or even killed by the members of Taliban in his locality because he refused to help them to work against the Pakistani army.

4.  The applicant claimed that in around June 2012, the Taliban people approached him and asked him to deliver a bomb to the military camp in Saleh Khana when he delivered the grocery there. He did not assist them as required. One night after that day, he was assaulted by two of them with sticks. He suffered injuries but not serious. He did not report this incident to the police. About two weeks later, the Taliban people came and took away his father. Again, he did not report to the police either. He moved to other places and finally stayed in Karachi where he remained for about a month. Nothing happened during this period of time. Whilst he was in Islamabad, he received a message from his wife that the Taliban had severed his father’s head and delivered it to the doorway of their home. He returned home to organize his father’s funeral and returned to Islamabad. He did not come across the Taliban on his return to his home village. He found an agent and made the arrangement for him to come to Hong Kong.

The Director’s Decisions

5.  The Director considered his application only 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 21 December 2015 (“the Director’s Decision”) and Notice of Further Decision dated 8 January 2018 (“the Director’s Further Decision”) collectively called the (“the Director’s Decisions”), 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 20 March 2018.

8.  By Decision dated 19 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.  The Board considered the applicant’s evidence and found: “I am satisfied that he is not a witness upon whom reliance can be placed [52] … I am satisfied that there is no reliable evidence that the appellant’s account of his experiences in Pakistan is true. In such circumstances, I find that there is no real chance or substantial grounds for believing that he would suffer harm at the hands of the Taliban if he returned to Pakistan.” [61] The Board came to such a conclusion after considering the following factors:

1. The timeline of events given by him could not be correct. [53]

2. He did not claim protection after arriving in Hong Kong and there was no reason for him to leave his wife and children in Pakistan, knowing the cruelty of the Taliban. [54]

3. There were inconsistencies in his accounts of significant events. [55]

4. He said in his Interview Report form that he was required by Taliban to be a suicide attacker and he had been abducted by them for several days and was beaten up. [56]

5. He made no mention in that form that his father had been murdered. [57]

6. He had not mentioned that he was abducted for several days in his subsequent evidence. When asked for an explanation at the hearing, he said that he mentioned his father was abducted. He said that the interpreter had made a mistake. If he had mentioned that his father was abducted, there was no reason for him not mentioning that he father was murdered too. [58]

7. He did not mention that he was required to be a suicide attacker at the hearing. He only said that he was told to take a bomb to the military camp. [59]

8. In his Non-Refoulement Claim form, he said that he was present when his father was abducted. At the hearing, he said that he was in another city, probably Karachi when his father was abducted. [60]

10.  It was on the above bases the Board rejected his evidence and found against him on his claim.

11.  In his Form 86 dated 9 November 2018 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 Decisions and the Board’s Decision respectively.

12.  In his affirmation in support of his application, the applicant relied upon the grounds against the Director’s Decisions and the grounds against the Board. As explained below, his application for leave to apply for judicial review should be against the Board only, I shall focus his grounds against the Board’s Decision.

1. The Board was in error for not considering him as member of particular social group, namely, “people who encounter problems with Taliban”; or “people who have family members kidnapped by Taliban” or “people who have family members killed by Taliban”.

2. The Adjudicator acknowledged that the problem with Talibans is still ongoing in Pakistan and state protection is not available, he should have remitted his case to the Immigration Department on that ground alone. But he failed to do so.

3. As to the credibility issue, he submitted that the fact that delay in his application for protection should not affect his credibility. He is uneducated and had language problem. He had said that the interpreter did not interpret fully what he said to the Adjudicator. His legal representative failed to spot the inconsistency in his evidence. It is his professional misconduct.

DISCUSSION

The Director’s Decisions

13.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

14.  The applicant has not set out any exceptional circumstances.

15.  Also, 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.”

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

The Board’s Decision

17.  The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

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

19.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.     Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

20.  Ground (1) is finding of the fact by the Adjudicator of the Board. There is no reason to upset the Board’s findings.

21.  Ground (2) fails as the Board had not found that Pakistan was unable to provide state protection for its people. The Board considered that since it decided that there was no reliable evidence that the applicant’s account of his experiences in Pakistan was true, it was not necessary to consider other matters. See §§61 and 62.

22.  The Board is entitled to take into consideration that the applicant failed to take advantage of a reasonable opportunity to claim non-refoulement protection under section 37ZD (1)(b) of the Ordinance. The language and interpreter’s problem had been considered by the Board. The applicant had not raised his legal representative’s misconduct at the hearing before the Board. The Board had not made any reference to this issue. The applicant simply is not allowed to raise this issue at this stage. Ground (3) fails.

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

CONCLUSION

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