DAR AZHAR SAEED v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2547/2018

[2019] HKCFI 2479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2547 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:

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”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Pakistani national. He arrived in Hong Kong on 19 June 2016 illegally. He surrendered to the Immigration Department on 22 June 2016. He lodged his non-refoulement claim on 13 July 2016.

3.  His reason for his application is that if he was refouled to Pakistan, he would be tortured, ill-treated and persecuted by the supporters of Pakistan Muslim League – Nawaz (“PML(N)”), who threatened to kill him.

4.  In his statements given to the Director and the Board, he claimed he was a supporter of PML(N). Since 2011 or 2012, he converted to support Pakistan Tehreek-e-Insaf (“PTI”), a rival party to his former party. However, he had information of those at the top level of PML(N) in relation to their criminal activities. The members were concerned that he might leak the information and cause troubles to their leaders. They had warned him on that. He agreed to keep the secrets. But he released such information to his own party leaders. As a result, the PML(N) members chased him and assaulted him with iron rods. They had even shot at him at one incident on the road. He received telephone threat whilst he was in Sialkot City.  He moved to various places to avoid them. Finally, he came to Hong Kong.

The Director’s Decision

5.  The Director considered his application only 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 (“the HKBOR”) (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 under RC”).

6.  By Notice of Decision dated 29 January 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 5 September 2018.

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

9.  The Board considered the applicant’s evidence and found that other than the fundamental facts in relation to his identity, his nationality and that he was assaulted twice and perhaps fired upon on one occasion, it rejected his evidence that he received a telephone threat on his second sojourn in Sialkot City in late 2015 [31 - 33]. It came to this conclusion because of his inconsistent evidence, he was unable to provide detail showing that it was his life experience. It further found “that he has fabricated this claim to address the obvious problem with his claims, that he lived in Sialkot City for a period of over two years, from May 2013 to October 2015 …without experiencing any harm at all.” [33]

10.  It further came to a conclusion that even if it is accepted that there was a real risk in respect of his claims, he would have state protection [37] and that he would be able to relocate himself to another part of Pakistan [38].

11.  In his Form 86 under Order 53, rule 3 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 Grounds attached to Form 86, the applicant relied upon the following grounds:

(1)     the Board’s Decision was unreasonable and was wrong as BOR 2 must be protected and the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence in support of his claim;

(2)     the Director failed to consider state acquiescence and state’s liability for failing to provide protection to its citizens;

(3)     the Director failed to give weight to his argument, especially the Country of Origin Information in his favour; and

(4)     the Director failed to attain the high standards 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 to apply 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. He could read English. He understood the Director’s Decision, the Hearing Bundle and the Board’s Decision.

16.  It is obvious that the Board rejected all of his evidence on the salient facts in support of his claim. Therefore, he has no factual basis for his claim.

17.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

18.  All the grounds are his opinions without any evidence to support them.

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

CONCLUSION

20.  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