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HCAL 437/2019
[2023] HKCFI 858
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 437 of 2019
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BETWEEN
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Ahmad Zeeshan |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision of the Director of Immigration dated 8 November 2016 (“the Director’s Decision”) and the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The Director’s Decision is not susceptible to judicial review once an appeal to the Board is pursued by him[1]. His application for leave to apply for judicial review against the Director’s Decision is dismissed in limine.
3. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the applicant appealed before the Court on 24 October 2022.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
5. The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 February 2007 and was arrested by the police on 23 February 2007. On 20 April 2007, he lodged a torture claim which was rejected by the Director on 23 July 2013. His subsequent petition to the Board was rejected. However, by a High Court order dated 2 January 2015, his torture claim was remitted to the Director for reconsideration. His torture claim was therefore assessed as a non-refoulement claim on all applicable grounds. The applicant claimed that, if refouled, he would be harmed or killed by (i) members of the Madrassa, and (ii) the local police, the court and the Shiya community.
6. According to the applicant, he studied in a Madrassa, which was an educational institution teaching Islamic principles to Sunni Muslims, in October 1998. The Sunni Muslims and the Shiya Muslims were at odds over whether the Shiya Muslims could gather at the grave which was considered a sacred place for prayer. On 8 October 1998, a fight burst out among the members. During the fight, one policeman was killed. As a result, the police visited the Madrassa and arrested all the prayers indiscriminately, including the applicant who was not present in the fight. Thereafter, he and other 34 arrestees were prosecuted. The applicant was subsequently acquitted after a trial in 1999. He was detained in the prison for about 9 months. The situation in the prison was appalling: he was starved and not provided with a bed.
7. After his release in around July 1999, some members of Madrassa, led by AK, visited the applicant and required him to do work for them. The applicant refused as he was afraid that he would be asked to conduct terrorist attacks which would contradict his own belief. He was assaulted and sustained bruises. The next day, the applicant was escorted to the police station. He escaped as he suspected that they were going to arrest him to be a scapegoat. A number of criminal charges were filed against the applicant for the fight between Shiya and Sunni.
8. The applicant stated that, after he escaped, he stayed at home until 2002. He also went to Karachi, Lahore, Attock until 2004. He then went to China, returned home and went to Sudan for a year. He left for Sudan through Karachi airport and did not encounter any problems.
9. In around May 2006, the applicant returned home from Sudan. While he was at the immigration counter at Islamabad airport, he was told by the officer that he was on the list of a fight occurred in December 2005. The officer demanded money. The applicant was let go after his mother bribed the officer.
10. The applicant stayed in three different places until his departure. During this period, while some people came to these addresses and asked for him, he always managed to escape. Shortly before he left for Hong Kong, he stayed with his mother for four to five days. Despite the people came, they only spoke bad words towards his mother. The applicant stated that he was listed in three first incidents reports (“FIRs”) bearing dates when he was not in Pakistan. As a result, he could not return or relocate to other areas of Pakistan. Further, members of Sunni were accused of bombing incidents. The applicant therefore decided to seek protection in Hong Kong. Details of his claim are set out at paragraphs 10 to 56 of the Notice of Decision dated 8 November 2016 by the Director (the “Director’s Decision”).
The Director’s Decision
11. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
12. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [61]-[78]; (ii) state protection would be available to him [79]-[115]; and (iii) internal relocation was a viable option [116]-[121].
The Board’s Decision
13. The applicant appealed the Director’s Decision to the Board. On 17 September 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [48]. His claim to the Board was that he would face continuing danger and also that there were false cases filed against him [44]-[47]. He provided the 2007 FIRs.
14. The Board clarified the material aspects with the applicant during the hearing [48]-[58]. The Board first considered the fight incident in 1998. It noted the discrepancy of the length of detention in the applicant’s evidence [62]. The applicant’s explanation that it was a mistake made by the interpreter was found to be problematic and such discrepancy raised a concern that the court documents were fabricated [63]. Yet, the Board accepted that the applicant was imprisoned for 9 months at the age of 14 or 15 and he was subsequently released [64]. It, however, refused to accept that the applicant had on-going problems with the police of Madrassa or members of Shiya [64].
15. In particular, while the Board accepted that there were attacks against Shiya community and a certain level of police corruption, it rejected the applicant’s assertion that he was continually pursued by the Madrassa on the basis of his vague and unpersuasive evidence [65]. Meanwhile, on the applicant’s own evidence, he had ceased contact with the Madrassa for almost 7 years at the time of the hearing and the Board refused to accept that he remained a target for 20 years after his brief attendance there [66].
16. Further, the Board also rejected his claimed fear of harm from the Shiya community. It noted that the applicant was able to avoid imprisonments after the 1998 incident despite he claimed that Shiya community had been bribing the police, which indicated that the Shiya community did not target him [68]. It also found that it would be unreasonable for Shiya community to target a young man who was acquitted at the age of 14 or 15 and had never participated in terrorist attacks, especially when there were many known groups to be held liable for the said attacks [69].
17. As to the claimed fear of harm from the police, the Board found that the applicant was able to avoid imprisonments from 1998 to 2007, indicating that he was not of real interest to the police [71]. He was able to come and leave the home country freely [72] and it was illogical for the Pakistani authority to actively pursue someone, who was acquitted some ten years ago, for an incident happened in 2007 [73]. In addition, the Board did not accept the 2007 FIRs and the letters from the applicant’s mother, lawyer, the Madrassa and boys home as the dates on the FIRs were February to June 2007 whilst the claimed incident happened in July 2007 and the fraudulent documents were readily available in Pakistan [75]-[76].
18. For the aforesaid findings, the Board found that the applicant’s claim was not credible and rejected his claim. His appeal was therefore dismissed.
Application for leave to apply for judicial review of the Board’s Decision
19. The applicant has filed Form 86 dated 15 February 2019 for leave to apply for judicial review of the Board’s Decision.
20. In Form 86, the applicant had raised the grounds in relation to the Board’s Decision below.
(1) The Board did not advise the applicant to obtain medical reports from Pakistan authorities to support his torture claim.
(2) In Mallawa Arachchige Amitha Priyangantie Mallawa Arachehi v Wesley Wong Esq [2014] HKEC 1490, it was held that medical reports are relevant consideration for torture claim.
(3) The Board did not send the Board’s Decision to the address of the CIC as requested by the applicant.
DISCUSSION
21. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
22. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
23. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
24. The ground in paragraph 20 does not assist his application. The Board does not act as his legal advisor to give him advise as to how to prove his case. He was legally represented when his case was processed by the immigration officer. Up to this stage, the applicant is not able to tell this Court what personal injury he had suffered that requires medical report. In any event, the Board does not act as his legal advisor. The Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. 20 August 2013 held:
“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”
25. The case cited is not relevant to this application as the case is on employees’ compensation issues. The delivery of the Board’s Decision is irrelevant now as the applicant has already brought the matter further for judicial review.
26. For the reasons above, the Board found the applicant’s claim not credible. There is no valid reason to challenge the Board’s Decision.
27. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
28. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
29. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 4th day of April 2023
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(M.O. WONG)(Ms)
for Registrar, High Court
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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 4/4/2023
Ahmad Zeeshan
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 4/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5257/16/11/196/P1204
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 441/15 (Formerly RBCZ 2000874/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1]. Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018)
“45. … 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. … 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.”
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