AHMED JAHANGIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1615/2018

[2020] HKCFI 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1615 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.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 21 August 2019.

2.  I have noted that in Form 86, the applicant asked for leave to apply for judicial review against the respective decisions of the Director and the Board. However, in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018), the Court of Appeal held that the Director’s Decision is not susceptible to judicial review once an appeal to the Board is pursued.

3.  The applicant agreed to amend Form 86 by deleting the Director as the respondent. Leave was granted to him to do so. Form 86 was therefore amended accordingly.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong from Shenzhen on 9 January 2016. He surrendered himself to the Immigration Department. On 22 June 2016 he lodged a non-refoulement claim.

5.  In support of his claim, he said that if refouled, he would be killed by Chaudhary Abid Raza (“his enemy”) of the Pakistan Muslim League N (“PML(N)”) and his men because he refused to support the PML(N) candidate and voted for the Pakistan Tehreek-e-Insaf candidate in 2015 election. He said that he was targeted by his enemy. A few days after the election, his enemy had brought several men to his house where they threatened to kill him if he refused to support their party. These men were armed with guns. He decided to leave Pakistan for Hong Kong.

The Director’s Decision

6.  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”).

7.  By Notice of Decision dated 12 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 29 May 2018.

9.  By Decision dated 12 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     The applicant failed to show that his enemy very often killed people with impunity [31].

b.     His enemy never intended to kill the applicant despite his switch of loyalty [37].

c.     The applicant was unable to prove he was targeted [38].

d.     That his enemy and the other men threatened to kill him if he refused to re-join PML(N) was only bare assertion [39].

Application for leave to apply for judicial review

11.  He filed Form 86 dated 13 August 2018 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

12.  In his affirmation, he said that his was still in danger if he went back to Pakistan.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

14.  I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments.

15.  It is obvious that the Board did not accept his factual evidence in support of his claim. He had no factual basis for his claim.

16.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence that this Court should intervene with the Board’s decision.

17.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.  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