NISAR AHMED v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1800/2018

[2019] HKCFI 2255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1800 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 (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 respective decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and The Director of Immigration (“the Director”).

2.  The applicant first appeared before this Court on 1 March 2019. He asked for an adjournment as he had just applied for legal aid. The matter was adjourned pursuant to section 15 of the Legal Aid Ordinance, Cap 91. The return date is 18 April 2019. On the return date, the applicant informed this Court that the Director of Legal Aid had refused his application and he had lodged his appeal. He asked this Court to adjourn this matter further pending his appeal. This Court, having considered that an appeal did not constitute a good reason for the adjournment and further that he did not have a meritorious case, refused his application for the adjournment and it proceeded to hear this application.

The applicant

3.  The applicant is a Pakistani national. He arrived in Hong Kong on 13 February 2016 illegally and was arrested on the same day. He was transferred to the Immigration Department on 16 February 2016 for investigation. He lodged a non-refoulement claim on 17 February 2016. On 20 October 2017, he was convicted of an offence of taking employment without the Director’s permission and was sentenced to 15 months’ imprisonment.

4.  His reason for his application is that, if refouled, he would be harmed or killed by the family members of a traffic accident’s victim in Pakistan.

5.  In his statement given to the Director he claimed that he was the driver of a vehicle, which hit a person on the road in Pakistan in 2015. That person died instantly. His passerby father advised him leave the scene and leave the matter to him to negotiate with the deceased’s relatives. He left the scene and hid himself up. His father was unable to settle the matter with the deceased’s relatives. The deceased’s relatives were trying to locate him and kill him. He had been chased by those people while riding a motorcycle. He managed to escape and reported the matter to police. He was scared because the police could not provide him with protection twenty-four hour every day. He took his father’s advice and came to Hong Kong illegally.

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 13 February 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board and he attended the hearing before the Adjudicator on 17 August 2018.

9.  By Decision dated 28 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

10.  The Board reported that the applicant refused to answer its questions despite being warned that if he did not answer its questions, it would not be able to verify his claims and it would unlikely overturn the Director’s Decision [29]. There were a number of issues that the Board would like to clarify with the applicant such as how the accident took place and how he had hidden himself, state protection and relocation [31] & [330]. Without the applicant’s assistance, the Board assessed the applicant’s case on the evidence available and found that it did not consider that the applicant faced a real risk of proscribed harm from the rider’s relatives or supporters of ANP or the Pakistani authorities if he is refouled to Pakistan [34].

Application for leave to apply for Judicial Review

11.  In his Form 86 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 respectively.

12.  In his submission to F86 in support of his application dated 31 August 2018, the applicant relied upon the following grounds:

(1)  the Director and the Adjudicator had wrongly assessed his claim;

(2)  the Director failed to consider state acquiescence;

(3)  the Director did not take into account of his argument;

(4)  the Director failed to consider the Country of Origin Information in favour of his case; and

(5)  the Director failed to maintain a high standard of fairness.

DISCUSSION

The Director’s Decision

13.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that 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. For these reasons we are of the view that the judge was correct to conclude that 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.”

14.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His lawyer had explained the Director’s Decision to him. He admitted that he deliberately refused to answer the Adjudicator’s questions. He explained that he was told by the inmates in the Correctional Centre that if he answered the questions, he would be kept in custody for a longer period of time.

16.  I have put the Board’s findings to him and asked for his comments. The applicant said that he had no comments on them.

17.  It is obvious that as the Board had explained to the applicant the purpose of the hearing and that without his cooperation, the Board would not be able to assess the evidence by taking into consideration his oral evidence and explanation. The Board was entitled to assess his evidence without his input in light of his refusal of cooperation. As a result, the Board accepted the Director’s Decision and refused his appeal.

18.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HCAL126/2010, C.A. at §25.

19.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

20.  The above grounds are not substantive grounds in support of his application. They fail.

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

CONCLUSION

22.  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.

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