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HCAL 949/2018
[2020] HKCFI 2040
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 949 OF 2018
BETWEEN
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Ahmed Waqas |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 C P Pang:
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 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office dated 10 May 2018 (“the Board’s Decision”).
TheApplicant
2. The applicant is a national of Pakistan. On about 17 January 2015, he came to Hong Kong illegally through China. On the following day, he was arrested by police. He lodged his non‑refoulement claim on 23 January 2015 and was subsequently released on recognizance. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 5-12 of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by a man named Arshad because of a land dispute. This man was a member of a political party (PPP) and was the Minister of Electricity. The applicant claimed that his life had been attempted and threatened by people of Arshad.
The Director’s decision
3. The Director of Immigration 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”).
4. By Notice of Decision dated 14 August 2017, the Director refused his claim for the reason that his claim was not substantiated on all applicable grounds.
The Board’s decision
5. The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Board on 22 January 2018.
6. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision. The Board’s decision covered all applicable grounds.
7. The Board found that his evidence about the important aspects of his claims was inconsistent over time, and in a number of aspects confused, vague and lacking in relevant detail [53, 55, 59]. It found that he was not a reliable witness and came to the conclusion that he had embellished and exaggerated the facts to create a claim for protection. The Board found that he was not at real risk of any of the proscribed types of harm.
Application for leave to apply for judicial review
8. The applicant filed Form 86 dated 28 May 2018 for leave to apply for judicial review of the Board’s Decision. Apart from attaching to his affirmation the Board’s decision, he stated no grounds of judicial review.
9. By an affirmation dated 24 October 2019, the applicant informed the court “I submitted my application to the Director of Immigration on 08-10-2019 to going back my country Pakistan.” The court asked him by letter dated 28 October 2019 to clarify whether he meant to withdraw his application for leave to apply for judicial review. Since then, the applicant has made no response. However, the Director informed the court by letter dated 5 May 2020 that the applicant had been removed from Hong Kong on 31 October 2019.
Discussion
10. It appears to the court that the applicant wished to withdraw or had no intention to pursue his application for leave to apply for judicial review. In any event, I have proceeded to assess if there is any merit in his case. He did not request an oral hearing. The application is therefore considered on the papers.
11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
12. As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, this Observation for the applicant will only focus on the latter’s decision.
13. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts based on the major inconsistencies, confusions and vagueness in the applicant’s evidence. On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment. As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.
14. The applicant failed to set out any ground to suggest that the Board was unfair or unreasonable in the public law sense.
15. The Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.
16. Havingconsidered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions. Nor do I find any failure on their part to apply high standards of fairness.
Disposition
17. For the reasons given, there is no realistic prospect of success in the applicant’s intended application. I accordingly refuse to grant leave to apply for judicial review.
Dated 24 August 2020
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(Chung Lai Fan, Christine) |
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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
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 24 August 2020
Ahmed Waqas
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 24 August 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8270/17/8/308/P1627
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1615/17 (Formerly RBCZ 10432/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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