MEHMOOD ARSHAD v. MRS. SYDELLE MULING, ESQ

HCAL1583/2018

[2019] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1583 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a Pakistani national. He entered Hong Kong illegally from China on 5 July 2014 and was arrested by police on 4 August 2014. On 5 August 2014, he was referred to the Immigration Department for further investigation. On 6 August 2014, he lodged his non-refoulement claim.

3.  In his statements given to the Director and the Board, the applicant claimed that if he was refouled to Pakistan, he would be harmed or killed by his distant relative Iftikhar Ahmed and his men in revenge for allegedly framing him for the murder of the applicant’s brother.

4.  In March 2003, his brother Ahmed was killed and his body was found at the outskirt of the neighbour. Some witnesses saw Iftikhar near the scene at the relevant time. He reported the matter to the police. Ifikhar was arrested together with other people. Iftikhar made a confession at the police station and was detained. However, he pleaded not guilty and was finally acquitted after trial. Iftikhar was angry at the applicant for reporting the case to the police. He took revenge upon the applicant and got his people to attack the applicant, who was injured in 2007. He moved around in order to avoid Ifikhar but was receiving phone harassment from Iftikhar. In 2014, Iftikhar went to his family’s house to look for him and threatened to kill him. He was advised by his family to leave Pakistan. In May 2014, he fled to China and entered Hong Kong by boat.

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 26 October, 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 28 February 2018.

8.  By Decision dated 13 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision. In the Board’s Decision, the Adjudicator found that there were a number of significant inconsistencies and discrepancies between the applicant’s written claims before the Director and his oral evidence before the Board [51]; that his evidence as to what happened after his brother was allegedly murdered to be inconsistent [55]; that his evidence of what Iftikhar allegedly did once he was released from detention was conflicting [56]. The Board ultimately found that the applicant was not a witness of truth and it did not accept that his brother was killed in the circumstances he claimed [60]. Finally, the Board rejected all of his evidence and found that there was no real risk as the applicant claimed if he was returned to Pakistan [61 & 62].

Application for leave to apply for Judicial Review

9.  In his Form 86 dated 9 August 2018, the applicant applied for leave for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing;

(4)  the Adjudicator was unfair and had not given greater care to a self‑represented claimant;

(5)  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6)  the Adjudicator had applied the incorrect standard of proof;

(7)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(8)  the Adjudicator had relied upon hearsay information and outdated materials in relation to COI;

(9)  the Adjudicator had cherry-picked and given undue weight on the irrelevant materials, neglecting the materials favourable to his case;

(10)  the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favourable to his case;

(11)  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(12)  the Adjudicator was wrong in issue of state protection in his country;

(13)  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

(14)  the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. Yet he is unhappy with their decisions. He also said that before the appeal hearing, he had asked his friend to explain the hearing bundle for him. He had no problem at the appeal hearing. His friend also explained the Board’s Decision to him.

12.  I had put the Board’s comments in paragraph 8 to the applicant and asked him if he had any comments on them. He said that he disagreed with the Adjudicator.

13.  As to the grounds above, the applicant said that his friend helped him prepare them. He did not understand them. But he had signed his name on the document.

14.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

15.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

16.  Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

17.  Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

18.  Ground (13) fails because the applicant had not even raised this issue with the Board.

19.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (14) fails.

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

CONCLUSION

21.  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.

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