KASHIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1400/2018

[2020] HKCFI 1014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1400 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 Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.  The applicant is a Pakistani national. He came to Hong Kong illegally 20 February 2016 and he was arrested by police the same day. On 21 February 2016, he was referred to the Immigration Department for investigation. On 22 February 2016, he made the non‑refoulement claim.

3.  He claimed that if he was repatriated to Pakistan, he would be harmed or killed by two groups because he witnessed a murder resulting from a fight between these two groups. He was threatened by the defendant not to give evidence and was also threatened with harm or death by the victim’s family if he did not give evidence.

4.  In his statement given to the Director and the Board, he said that he worked as a salesman in a garment shop. In 2015, after the shop had closed. He heard noises outside. He went out and saw a fight between two groups of men in the street. There were some 15 to 20 men at the scene. He saw one man being shot by another man. A few days later, around seven members of the deceased man’s family came to his shop and asked to be their witness. He agreed. Two hours later, the culprits of the murder came to the shop in a group of seven or eight and threatened to kill him if he gave evidence. He met the victim’s family on the street and told them that he would not stand as their witness. They were angry and hit him. They threatened to kill him if he refused to be their witness. A few days later, the culprits also went to his shop and made the same threat before. He was afraid and he quitted his job 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.     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 22 August 2017 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.

The Board’s Decision

7.  The applicant appealed to the Board and had appeared before the Adjudicator on 6 June 2018.

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

9.  The Adjudicator had made quite extensive enquiries in relation to the incidents of his witnessing the murder incident and the events after the murder. The Adjudicator was not satisfied with his evidence. She found:

“16. … … However, having considered all the evidence before me I have cumulatively significant concerns regarding the truth of central aspects of the claims and evidence advanced. …

17. … … When the evidence he has given is assessed in its totality, multiple significant anomalies are evident which lead me to conclude that central aspects of the Appellant’s circumstances are not as he has claimed.

33. … …. I am not satisfied that the Appellant fled Pakistan for any of the reasons claimed.

34. On the evidence before me, I do not accept that the Appellant faces a real chance of harm of any nature in Pakistan for any of the reasons claimed.”

Application for leave to apply for judicial review

10.  By Form 86 dated 16 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the decisions of the Director and the Adjudicator of the Board respectively.

11.  In his affirmation in support of his application dated on 16 July 2018, he set out the reasons in support of his application in a narrative form. I shall summarize his specific grounds below:

(1)     the Director had failed to maintain high standard of fairness;

(2)     the Director had failed to appreciate the presence of state acquiescence;

(3)     the Adjudicator had not made sufficient enquiries into the matter and she should not ask him to adduce evidence as he was detained in the immigration centre;

(4)     the Director had only given weight to the evidence in accordance with his pre-conceived conclusion, which was unfair to him.

DISCUSSION

The Direction’s Decision

12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had 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 was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.  Also, 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.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15.  For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decisions.

The Board’s Decision

16.  The Board’s Decision is based upon the fact that the Adjudicator disbelieved the applicant’s evidence. This is a matter of finding of the fact, which is squarely within the province of the Adjudicator. See 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.

17.  Grounds (1) (2) and (4) are his opinion without evidence to support. They fail.

18.  As to ground (3), the Adjudicator was entitled to require the applicant to adduce evidence in support of his claim because the burden of proof is on him. If he had any problem of obtaining the evidence, he may tell the Adjudicator, who would make the arrangement or decision. He was unable to identify the evidence he intended to adduce and the effect of having no such evidence. This ground fails too.

19.  I find that the applicant was unable to show that he had any reasonable chance in his judicial review.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave to apply for the judicial review as proposed. 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