KASHIF ANWAR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL795/2017

[2018] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 795 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for leave for judicial review of the decisions of the Director of Immigration (“the Director”) and the Adjudication of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

Setting aside of the ex parte order dismissing the applicant’s application

2.   The applicant requested a hearing. The hearing was fixed at 10:00 a.m. on 9 November 2018. However, the applicant was absent on that day.

3.   By an Order dated 9 November 2018, this Court dismissed his application for want of prosecution.

4.   The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time. Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons dated 27 November 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.   On 4 December 2018, this Court gave directions that a hearing be fixed at 10:00 a.m. on 14 December 2018 and the applicant should file an affirmation to state his reasons for his absence on 9 November 2018 within 7 days from the date of the direction.

6.   The applicant did not file any affirmation to explain his absence on 9 November 2018.

7.   He appeared before me. He asked for leniency. He was allowed to make his affirmation to explain why he was absent on 9 November 2018 in court. He explained that he had made a mistake in that he thought 9 November 2018 was Monday. When he checked the date on Monday, he discovered that 9 November should be Friday. By then the appointed date had passed. That is why he failed to attend court on 9 November 2018.

8.   I accept his explanation for his absence on 9 November 2018.

9.   Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte. Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 9 November 2018 dismissing his application. The said order is now set aside.

10.   I shall now consider the applicant’s application for leave for judicial review of the Director’s Decisions and the Board’s Decision.

The applicant

11.   The applicant is a Pakistani, who had come to Hong Kong on a number of occasions. He had made non-refoulement claims during his stay on those occasions. However, he withdrew his applications and he was deported back to his own country. But he subsequently returned to Hong Kong illegally and reinstated his non-refoulement claims. He had also committed offences during his previous stays in Hong Kong and was sentenced to imprisonment. On this occasion, he entered Hong Kong on 25 December 2015 illegally. He was arrested and charged with the offence of being in breach of deportation order. He was sentenced for 18 months’ imprisonment. Again, he submitted his non-refoulement claim on 12 January 2017, relying upon his grounds that he filed for his non-refoulement claim in 2008.

12.   In support of his non-refoulement claim, the applicant said that he had to leave his country to avoid his paternal uncles and their families who were in support of the Pakistan Muslim League-Q. The conflict with the uncles arose from a dispute over a piece of landed property inherited by his father and his uncles. Around mid-2007, the uncles obtained assistance from Butt’s brother, the intended buyers of the piece of landed property to exert force upon the applicant and his family to sell the said property to them at a cheap price. There had been a number of occasions where the uncles together with the Butt’s people had caused harms to him and his family members with pistol and daggers.^[1]

The Director’s Decision

13.   The Director considered that applicant’s application for non-refoulement by reference to the risks below:

a.   risk of torture under Part VII C 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.   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”)

14.   By Notice of Decision dated 30 June 2017, the Director refused the applicant’s application for the reason that his claim was not substantiated.

The Board’s Decision

15.   The applicant appealed to the Board.

16.   The Adjudicator of the Board conducted a hearing on 18 September 2017.

17.   By Decision dated 3 October 2017, the Board rejected his appeal and confirmed the Director’s Decision.

Application for leave for judicial review

18.   By Form 86 dated 19 October 2017, he applied for leave for judicial review of the Decision of the Director and the Decision of the Adjudicator, relying upon the following grounds:

(1)   the Director has failed to give proper weight to the state acquiescence in this case;

(2)   the Director has failed to give weight to the relevant COIs that were in favour of the applicant’s case, ie corruption and incompetence of the administration in Pakistan;

(3)   the Director has relied upon COIs, concluding that there were structured policy forces, which is not right as it holds against the applicant’s interest;

(4)   the Director has failed to attain high standard of fairness;

(5)   the Adjudicator failed to make sufficient enquiry before determination; and

(6)   the Adjudicator should not demand evidence from the applicant because he was being detained in the Immigration Detention Centre.

DISCUSSION

The Director’s Decision

19.   In my view, he is not entitled to apply for leave for judicial review of the Director’s Decision as he has no exception circumstances for my consideration.

20.   In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had already heard his appeal and made its Decision.

21.   I maintain my view here and hold that the applicant’s application for leave for judicial review of the Director’s Decision fails in limine.

The Board’s Decision

22.   I shall now proceed to consider the applicant’s application in relation to the Board’s Decision.

23.   The applicant has appeared before me. He confirmed that he had no complaint against the immigration officer and the interpreter in the screening process. Also, he had no complaint against the Adjudicator of the Board or the interpreter of the Appeal Board. He is simply not happy with their decisions.

24.   Ground (1); it is a matter of fact whether there was state acquiescence in this case. The fact is to be found by the Director and the Adjudicator. in Ali Haider CACV8/2018, [2018] HKCA 222 at §13. The Adjudicator had made her findings at paragraph 57 of the Board’s Decision.

25.   Grounds (2) and (3): the Adjudicator has discretion to treatment the evidence, giving the appropriate weight to the evidence she considered appropriate. The applicant has not been able to identify the error she had made.

26.   Grounds (4) and (5) are just opinion unsubstantiated by evidence.

27.   Ground (6): the Adjudicator is entitled to ask for evidence from the applicant as he has the burden of proof of his case. He could simply tell the Adjudicator his difficulty in obtaining the evidence. It is a matter for the Adjudicator to deal with the situation. He had not made the request himself at the hearing. This is not a valid of complaint against the Adjudicator.

28.   Obviously, the Adjudicator had considered the Director’s Decision. Simply put, the applicant is unhappy about the conclusions of the Adjudicator. This is not substantive ground in support of his application. From her Decision, I find that the Adjudicator had made investigations into the applicant’s case.

CONCLUSION

29.   There is nothing amiss in the Adjudicator’s Decision. The applicant’s application for judicial review against her Decision has no real prospect of success. I refuse to grant leave for the proposed judicial review. Accordingly, I dismiss the applicant’s 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