RE ALI NUSRAT also known as NOKAR HUSSAIN

CACV 263/2018

[2018] HKCA 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263OF 2018

(ON APPEAL FROM HCAL 213/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal from the decision of Anthony Chan J dated 15 June 2018 refusing to grant leave to the applicant to apply for judicial review.

Travel history

2.  The applicant is a national of Pakistan.  He first arrived in Hong Kong on 14 September 1998 on the strength of a Pakistani passport under the name of Mujadhid Nursrat Ali.  He was granted permission to remain as a visitor for 3 months.  When he tried to depart on 11 November 1998, an immigration assistant suspected him as not being the rightful owner of the passport.  During the investigation, the applicant claimed that he visited Hong Kong “for sightseeing and to survey business opportunity” and he decided to leave because he did not “find any business opportunity in Hong Kong”.  Subsequently, he was charged with, and convicted of, the offence ofusing an unlawfully obtained travel document and making false representation to an immigration assistant.  He was sentenced to 6 months’ imprisonment, and was deported back to Pakistan after serving the sentence.

3.  On 27 November 2000, he came to Hong Kong using a passport under the name of Nokar Hussain.  He was granted a permission to remain asa visitor for 7 days.  He did not depart upon the expiry of the permission, and overstayed illegally.  About 5 years later, on 12 December 2005, he together with a woman named Pujiati Yayuk and their new born son surrendered to the immigration department for deportation arrangement.  During the investigation, he claimed that he and Pujiati Yayuk registered with the United Nations High Commissioner for Refugees but the application was withdrawn in September 2005.  He also claimed that his real name was Mujahid Nusrat Ali and admitted that the passport he possessed for entry bore a false name and a false date of birth.  He was subsequently charged with, and convicted of, offences including breach of condition of stay, using a false travel document, making a false representation to an immigration assistant, and misleading a member of the immigration service by giving false information.  He was sentenced to 12 months’ imprisonment and deported back to Pakistan on 16 June 2006.

4.  On 5 April 2015, he was arrested by the police for possession ofan identity card relating to another person.  He later produced a recognizance form under the name of Arshad Mahmood.  Nine days later, he was arrested by the police again for illegal remaining.  This time, he produced a passport under the name of Ali Nusrat.  He was subsequently charged with, and convicted of, offences of possession of an identity card relating to another person, illegal remaining, knowingly misleading a police officer, and breach of deportation order.  On 8 May 2015, he was sentenced to 18 months’ imprisonment.

The non-refoulement claim

5.  The applicant lodged his non-refoulement claim on 11 February 2016.  The claim was however defective as it did not contain a general indication of reasons for claiming non-refoulement protection.  To rectify the defect, the applicant amended his claim on 7 March 2016.

6.  The applicant’s claim was based on the fear that, if refouled, he would be harmed by the members of Pakistan Muslim League (N) (“PML(N)”) because of his support of its political rival Pakistan Peoples Party (“PPP”).  He claimed that he had been an active member of PPP since 1997.  The applicant also claimed that, if returned to Pakistan, he would be harmed or even killed by his 4 paternal uncles because of a dispute over land. 

7.  At the screening interview with the immigration officer, the applicant claimed that both Ali Ausrat and Ali Mujahid Nusrat were his names.  He also explained that the false date of birth and place of birth in his passport were due to a mistake made by his teacher in his school document.

Decisions of the director and the board

8.  The director assessed the applicant’s claim based on BOR 3 risk[1], BOR 2 risk[2], persecution risk[3], and torture risk[4] and determined the claim against the applicant.  The director rejected the applicant’s claim for non-refoulement protection on 24 November 2016.

9.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 16 March 2017.  The board found that the applicant’s story did not stand up to scrutiny.  It concluded that many aspects of his claim were illogical, implausible or less than credible.  As a result, it found that the applicant failed to provide objective grounds for showing that there was a real chance that his perceived fear of harm would materialize.  The board rejected the applicant’s claim on 31 March 2017.

The judge’s decision

10.  On 17 May 2017, the applicant applied to the court for leave to apply for judicial review.  According to the form 86, the intended application for judicial review was against the decisions of the director and the board.  The applicant sought to rely on the following grounds for seeking reliefs in the intended judicial review:

 (a) the director erred in failing to consider the concept of state acquiescence, and its extended form; and

 (b) the board erred in failing to make sufficient inquiry as to the attack perpetrated by the supporters of PML(N) and to obtain medical report as regards the applicant’s injuries. 

11.  The applicant also filed an affirmation in support of the leave application, exhibiting various documents, including an article concerning police abuse and reform, the first information report to the police relating to the alleged murder of his grandfather, and a letter from a member of PPP. 

12.  The judge held an oral hearing on 14 June 2018. After hearing the applicant, the judge refused to grant leave to apply for judicial review.  His reason in refusing leave was published as [2018] HKCA 1361, where the judge observed:

“ I am unable to see any merit in this application. The law is not divorced from common sense. The Applicant’s non-refoulement claim, viewed in the context of his previous visits and long periods of stay in Hong Kong without making such claim (save for his asylum claim with the UNHCR which was subsequently withdrawn), is quite extraordinary.

The Applicant is a man with no less than 3 convictions in Hong Kong, spanning over nearly 15 years, on the use of an unlawfully obtainedor false travel document. His evidence was carefully analysed and considered by the Torture Claims Appeal Board. Such evidence was found to be incredible or unreliable. There was no proper factual basis for the Applicant’s claims.

The Applicant’s suggestion at the hearing of the leave application to provide further unspecified supporting documents, viewed in light of the lack of credibility of his case and the history of these matters, cannot be regarded as anything but a delaying play.”

The appeal

13.  The applicant filed a notice of appeal on 25 June 2018. In it, the applicant advanced the following grounds of appeal:

“ 1. First and foremost, the observations made by the Honourable Mr. Justice Anthony Chan is very brief and irrelevant to my case.

2. My prior conviction should not be used against me.

3.     Furthermore, there has been absolutely no consideration for the grounds put forward in my supporting affirmation that was submitted together with the Form 86.  I seek to adopt and rely on the grounds as set out in the supporting affirmation, and I reserve the right to elaborate in more details in my later submissions.”

14.  By a letter dated 9 July 2018, the applicant gave consent that this appeal be heard before a two-judge court.

15.  The applicant lodged his Skeleton Submission on 9 October 2018.  In addition to repetition of the grounds of appeal, the applicant submitted that the objective country of original information showed that state protection was not available and internal relocation was not a viable option for him. 

16.  We heard the appeal on 14 November 2018.

Discussion

17.  As it has been held in Re Moshsin Ali [2018] HKCA 549 at [45], the decision of the director is superseded by the decision of the board and the former is not susceptible to judicial review once an appeal to the board is pursuant by a claimant.  Accordingly, in this appeal, we should focus on the decision of the board.

18.  In the present case, the board rejected the applicant’s non-refoulement claim on the basis of its adverse finding on the applicant’s credibility.  It is apparent in the judge’s decision that there was no public law ground that would justify the court’s intervention of the board’s decision.  In appeal, the applicant must demonstrate viable grounds that warrant this Court to reverse the judge’s decision: see Re Islam Rafiqul [2018] HKCA 570 at [14(6)]; Re Hossain Shahbaz [2018] HKCA 601 at [10(c)]; and Re Morol Rana [2018] HKCA 617 at [13(e)]. Plainly, the applicant fails to do so.

19.  There is no merit in the challenge against the judge’s decision based on its brevity.  As it has been held, the judge’s decision should be read together with the decisions of the director and the board: see Re Zunariyah[2018] HKCA 14 at [21].  In our view, when this is done, the judge’s reasoning is sufficiently clear.

20.  It is wrong to suggest that the applicant’s prior conviction should not be used in the assessment of his credibility.  In fact, according to section 37ZD of the Immigration Ordinance (Cap 115), an immigration officer or the board when assessing a claimant’s credibility is obliged to take into account of, inter alia:

(a) any behaviour that the immigration officer or the board considers is designed to, or is likely to be designed to conceal information or mislead (section 37ZD(1)(a));

(b) a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State) (section 37ZD(1)(b)); and

(c) the production of a false document as proof of the claimant’s identity (section 37ZD(2)(a)).

21.  Accordingly, the applicant’s convictions relating to the use of unlawfully obtained travel document, misleading or making false representation to an immigration assistant/a police officer, and the possession of an identity card relating to another person, are all relevant to the assessment of his credibility.  There is no basis to challenge the judge’s decision in this regard.

22.  In our judgment, the applicant’s challenge to the board’s decision is without merit.  As set out at [16] to [35] of the decision of 16 March 2017, the board gave due consideration to the allegations of the applicant and his documents.  The board gave rational and sound reasons for making adverse finding on his credibility.  The board found the documents produced by the applicant could not be relied upon (see [30] to [32]).  In particular, the board found that there was no credible evidence that he had been harmed or at risk of harm from supporters of the PML-N and there was no credible evidence suggesting that supporters of the PML-N would want to kill or harm him.  The board rejected his claim that he was an active supporter of the PPP.

23.  It is clear from the board’s decision that the board had duly examined the applicant’s case and rejected the same for good reasons.  There is no basis for suggesting that the board did not consider the alleged attack perpetuated by supporters of PML-N.  If the applicant sought to rely on medical report, he should have produced the same to the board.  Even on the high standards of fairness, based on the materials before it, the board did not have a duty to procure such medical report.  

24.  Having considered the materials before us, as well as the submissions of the applicant, we find nothing that can justify a reversal of the judge’s decision.  We agree with the judge that leave to apply for judicial review should be refused.

25.  We dismiss the appeal accordingly.