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HCAL1778/2018
[2019] HKCFI 1565
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1778 of 2018
BETWEEN
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Mahmood WAJID |
Applicant |
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Li Wai Chi, ESQ, Adjudicator of the
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 Adjudicator of the 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 arrived in Hong Kong on 5 March 2016 illegally through China and was arrested by police on the same day. He was referred to the Immigration Department for further investigation on 6 March 2016. He lodged his non‑refoulement claim on 7 March 2016.
3. In his statements given to the Director and the Board, he said that if he returned to Pakistan, he would be harmed by his enemies, Munir, Sheeraz, Shaban and Tabir (“Four People”) and their people because of private dispute and he also feared that he would be arrested by police in Pakistan. He said that his enemies bought a piece of land adjacent to his home in 2016. There was a public path between them. His enemies wanted to occupy the public path as their property as well. They attacked the applicant and his family members when they saw them using the path. The police had also laid charges against him and his cousin. In 2013, police charged him with false allegation of buggery. He was at gun point by police officer. He denied this charge. He moved to other places in 2014. He was a wanted person. In 2016, he came to Hong Kong.
The Director’s Decision
4. 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”).
5. By Notice of Decision dated 31 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.
The Board
6. The applicant appealed to the Board and a hearing was fixed before the Adjudicator on 22 June 2018. However, the applicant was late for more than an hour. The Adjudicator waited for half an hour and decided to assess his case on the papers available before the Board.
7. By Decision dated 30 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
8. The Board considered the applicant’s case and found that his evidence was questionable and unreliable and it was unable to attach any weight to his evidence that there was a risk of harm in his home country from the enemies he claimed. In short, his evidence was incredible and it rejected his evidence and his claim [64].
9. In his Form 86 dated 29 August 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.
10. In his affirmation and submissions attached to Form 86 in support of his application, the applicant relied upon the following grounds:
(1) the applicant was not legally represented before the Board, which was in breach of procedural fairness;
(2) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;
(3) the contents of the hearing bundle were in English and he was unable to obtain interpreter service;
(4) he was confused at the appeal hearing;
(5) the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information; and
(6) there was no screening for him for BOR 2 risk.
DISCUSSION
The Board’s Decision
11. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. The hearing bundle was explained to him by his friend. He understood the Board’s Decision as he had assistance from his friend.
12. I explained the comments above to him and asked if he had any comments. He said that he did not have any comment.
13. 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.
14. Ground (1) fails because the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had the benefit of legal representation in presenting his case to the Director of Immigration.
15. Grounds (2) to (4) fail as they are inconsistent with what the applicant said before this Court. He did not even attend the appeal hearing.
16. Ground (5) is his opinion without any evidence in support of it.
17. Ground (6) fails because the Director had assessed BOR 2 risk in the enhanced screening mechanism.
18. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.
CONCLUSION
19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.
Dated the 20th day of June 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
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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 20/06/2019
Mahmood WAJID
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 20/06/2019
Li Wai Chi, ESQ, Adjudicator of the
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8114/17/8/152/P1591
The Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1018/17 (formerly RBCZ 11139/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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