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HCAL1411/2018
[2019] HKCFI 459
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1411 of 2018
BETWEEN
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Chaudhry Asjad Iqbal |
Applicant |
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The Director of Immigration |
1st Putative Respondent |
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The Adjudicator of the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
2nd Putative Respondent |
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 for judicial review against the decision of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).
The applicant
2. The applicant is a Pakistani national. On 17 December 2013, he came from Macau but was refused to land. On the same day, he lodged his claim for non-refoulement. He was released on recognizance. On 9 March 2015 he was arrested by police for theft. He was absent for the court hearing on 10 April 2015. On 26 August 2017, he was arrested by police for theft again. He was subsequently convicted of two counts of theft charges and was sentenced to 13 months’ imprisonment.
3. He claimed that if he were to be returned to Pakistan, he would be harmed or killed by Major M, the leader and the members of the Pakistan Muslim League (N) (“PML(N)”) because he refused to join this organization.
4. In his statements given to the Director and the Board, he said that he belonged to Pakistan Muslim League (Q) and was an active member of it. In 2011, he was told to join PML(N) instead. He refused and was beaten up by 8-9 people with wooden sticks. He suffered injuries. Subsequent to this incident, he was further attacked by the members of PML(N) on two occasions. Major M used an electric wire against his private parts 3 or 4 times. He was assaulted with sticks and his head was pushed into a tub of water. He suffered serious injuries and was unconscious. He reported the matters to police, which did not take action against Major M or his people. He moved to somewhere else and finally decided to come to Hong Kong.
The Director’s Decision
5. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C 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. 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 29 January 2018 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.
The Board
7. The applicant appealed to the Board. On 29 June 2018, he appeared before the Adjudicator.
8. By Decision dated 16 July 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.
9. According to the Adjudicator, the applicant refused to answer any question put to him by the Adjudicator. The Adjudicator told him that if he chose not to address the doubts with him, it was unlikely that he would reverse the Director’s Decision. He said that he understood but still elected not to answer the Adjudicator’s questions [28]. The Adjudicator was therefore unable to clarify various issues that he considered should be clarified with the applicant. On the evidence available, the Adjudicator found that the applicant did not face any real risk of harm from Major N or PML(N) if he was refouled to Pakistan. See paragraphs 29-33 of the Board’s Decision.
Application for leave for judicial review
10. By Form 86 dated 17 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 Director’s Decision and the Board’s Decision.
11. In his affirmation in support of his application filed, the applicant set out the reasons in support of his application as summarized below:
(1) the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;
(2) the Director had failed to consider the issue of state acquiescence;
(3) the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;
(4) the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;
(5) the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;
(6) the Director failed to appreciate that corruption and incompetency of the administration in the applicant’s country;
(7) the Adjudicator failed to make sufficient enquiry before making the determination;
(8) the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and
(9) the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.
DISCUSSION
The Director’s Decision
12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.
13. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
15. It is obvious that the applicant’s claim is facts sensitive. The Board had rejected all of his evidence in relation to the facts of the case. There is simply no factual basis in support of his claim.
16. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 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….”
17. Grounds (1) to (7) are either the applicant’s opinion without any evidence to support or they are the facts to be found by the Director or the Board. They fail.
18. As to ground (8), the Adjudicator was entitled to ask for evidence from the applicant as he has the burden of proof. He had not asked for indulgence or assistance from the Adjudicator. This ground fails.
19. As to ground (9), the applicant was unable to identify the relevant evidence in support of his claim that he intended to adduce to the Board. This ground fails too.
20. I find that the applicant is unable to show that he has reasonable chance of success in his intended judicial review.
CONCLUSION
21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.
Dated the 27th day of February 2019
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(Alan Ngan)
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
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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 27/2/2019
Chaudhry Asjad Iqbal
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 27/2/2019
The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 3256/17 (formerly RBCZ 34/17)
The Adjudicator of the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 10271/18/2/155/P1978
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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