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HCAL1370/2018
[2019] HKCFI 1777
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1370 of 2018
BETWEEN
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Fiasat |
Applicant |
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Wesley Wong, ESQ |
Putative Respondent |
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The Director of Immigration |
Putative interested party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration as the interested party (“the Director”).
The applicant
2. The applicant is a Pakistani national. He came to Hong Kong illegally on 28 July 2015. He surrendered to the Immigration Department on 5 August 2015. On 5 November 2015 he lodged his non-refoulement claim. He was convicted of an offence of taking employment without the authority of the Director and was sentenced to 15 months’ imprisonment.
3. He claimed that if he was repatriated to Pakistan, he would be harmed or killed by the members of a Sunni organization and their associates being related to the terrorist group, the Taliban.
4. In his statement given to the Director and the Board, he said that he was a Sunni Muslim. In May 2014, his brother and their neighbour Adil had joined an organization formed by some of the Sunni Muslims associated with the terrorist group, the Taliban. His father advised his brother to quit the organization. His brother took the advice and withdrew from the organization. Shortly afterwards, he was murdered by members of the organization. A few days later, Adil told the applicant that the organization members asked him to join the organization or he would be killed. He moved to other places. He considered that if he stayed in Pakistan, he would be killed too. Therefore, he arranged to come to Hong Kong through China.
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”).
6. By Notice of Decision dated 27 February 2017 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.
The Board’s Decision
7. He appealed to the Board and he attended a hearing before the Adjudicator on 13 March 2018.
8. By its Decision dated 18 May 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.
9. Having considered the applicant’s evidence, the Adjudicator concluded that there was no merit in his application. The Adjudicator set out his reasons under paragraph 22 of the Board’s Decision. In gist, the Adjudicator rejected all his claims, taking into consideration of the relevant factors as provided under section 37ZD of the Immigration Ordinance, Cap 115.
Application for leave to apply for judicial review
10. By Form 86 dated 12 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision, joining the Director as the interested party.
11. In his affirmation in support of his application dated 12 July 2018, the applicant relied upon the following grounds:
(1) the hearing bundle was delivered to him shortly before the appeal hearing;
(2) the contents of the hearing bundle were in English and there was no translation;
(3) the Board relied upon the Country of Origin Information which was outdated and hearsay; and
(4) the BOR 2 risk was assessed without screening by the immigration officer.
DISCUSSION
12. The applicant had appeared before me and he confirmed that before the appeal hearing, his friend had explained the contents of the Hearing Bundle to him. He also confirmed that he had no complaint against the Board. He was satisfied that he had had a fair hearing before the Board.
13. Grounds (1) and (2) do not sustain.
14. As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Immigration Ordinance, the Board may consider the same evidence that was before the immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why he considers that the information is unreliable. Ground 3 fails
15. Ground (4) fails as the Director assessed this risk in the same screening when other risks were considered.
16. I find that the applicant is unable to show that his judicial review has any reasonable chance of success.
CONCLUSION
17. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.
Dated the 17th day of July 2019
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(Henry Ng)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 17/7/2019
Fiasat
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/7/2019
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6457/17/3/112/P1377
The Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3121/16 (formerly RBCZ 10103/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer;
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;
[3] See §21
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