HCAL1741/2018
[2019] HKCFI 2225
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1741 of 2018
BETWEEN
Rehman Danish Ur alias Rehman Danish
Applicant
and
Adjudicator of the Torture Claims Appeal Board/
1st Putative Respondent
The Director of Immigration
2nd Putative Respondent
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 K.W. Lung :
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 for judicial review against the respective decisions 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 illegally on 26 October 2015 and was arrested and transferred to the Immigration Department. He lodged his non‑refoulement claim on 29 October 2015.
3. His reason for his application is that he would be harmed or killed by the people from Pakistan Muslim League (Nawaz) (“PMLN ”) because he supported Pakistan Tehreek‑e‑Insaf (“PTI ”) if he were to be returned to Pakistan.
4. In his statements given to the Director and the Board, he claimed that he family members were supporters of PTI. They canvassed votes for their party. The PMLN people tried to persuade him to join them. He refused. They threatened him that they would break his limbs or even kill him. After the election, the PMLN won it. The PMLN people became more aggressive towards him and other PTI members. They abused him and the other people with threats that they would break his limbs or kill him. He was under great pressure in 2015 and he decided to come to Hong Kong.
The Director’s Decision
5. 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 under RC ”).
6. By Notice of Decision dated 1 September 2017 (“the Director’s Decision ”), the Director rejected his claim for the reason that his claim was not substantiated.
The Board
7. The applicant appealed to the Board and he attended the hearing before the Adjudicator on 31 May 2018.
8. By Decision dated 10 August 2018 (“the Board’s Decision ”), the Board refused his appeal and confirmed the Director’s Decision.
9. Having considered the evidence, the Board found the facts below:
(1) The applicant’s life would not be specifically threatened at all and that his fear of being killed or harmed for political reason was not well-founded [42].
(2) The applicant would not face any genuine substantial risk of being subject to CIDTP [49].
(3) BOR 2 risk had not been made out [52].
(4) The applicant failed to substantiate that he was being affected by “torture” within the meaning of the legal definition [58].
10. 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.
11. In his affirmation in support of his application dated 24 August 2018, the applicant relied upon the grounds below:
(1) He was not provided with legal or language assistance for his appeal.
(2) The Director had adopted a uniform approach of rejecting all applications.
(3) The hearing bundle was not translated to the applicant.
(4) The Director had selected the Country of Origin Information which was averse to his application.
DISCUSSION
The Director’s Decision
12. 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.”
13. 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
14. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.
15. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704 ; Re Gurung Sagar [2019] HKCA 658 .
16. The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 , 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings.
17. In Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549 , 24 August 2018 §42, the Court of Appeal held that the finding of fact of the Board is final.
18. Grounds (1) to (3) fail. Ground (4) is only his opinion without any evidence in support of it. It fails too.
19. The applicant fails to show that he has any 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.
Dated the 6th day of September 2019
(Alan Ngan)
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 :
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);
Sent to the ApplicantRehman Danish Ur alias Rehman Danish
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 6/9/2019 Adjudicator of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:The Director of Immigration nd Putative Respondent’s ref. no.: QA T/C 1836/17 (formerly RBCZ 13945/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1