Hussain Muzzammil v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 67/2018

[2019] HKCFI 1760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 67 of 2018

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 1 February 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.The applicant is a 30-year-old national of Pakistan who entered Hong Kong illegally on 17 October 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Peoples Party (“PPP”).  He was then released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Sambrial, Sialkot, Pakistan.  After leaving school he worked in the factory and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”) regularly putting up banners and posters for the party.

3.One day in 2009 he got into a dispute with several PPP supporters that during their argument the PPP supporters threatened to kill him if he did not leave town.  Two weeks later when he ran into the same group of PPP supporters in the street, he was pushed around and again was threatened to leave town or else he would be killed.

4.As a result the applicant became concerned for his own safety and was advised by his father to leave Pakistan, and so on 8 October 2009 he departed for China, and from there he sneaked into Hong Kong and raised his torture claim which was subsequently taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 2 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 28 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those PPP supporters to the applicant upon his return to Pakistan as low due to the absence of past ill-treatment from them, that there is reliable evidence of any real intention on their part to seriously harm or kill the applicant, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for those PPP people to locate him.

7.By a Notice of Further Decision dated 28 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non- derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 10 September 2015, and for which he attended an oral hearing on 22 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.On 24 February 2017 the applicant filed his Form 86 under HCAL 51/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  illegality in their failure to take into account relevant considerations and/or to give proper weight to relevant information and materials;

(2)  procedural impropriety in the Board’s failure to properly clarify at the oral hearing of issues which stood against the applicant’s credibility in contravention of the high standard of fairness required;  

(3)  procedural impropriety in their failure to conduct sufficient inquiry into relevant COI, failure to provide explanation why they preferred COI materials to his assertions, failure to conduct critical analysis of the relevant COI or to have regard to relevant and up-to-date COI, and cherry-picking COI to support their own conclusions;

(4)  procedural impropriety in their failure to consider the concept of extended state acquiescence; and

(5)  error/misdirection in law in their failure to properly consider whether state protection and relief were effective in protecting the citizens of Pakistan.  

10.These were however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, and on 5 January 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding no error of law or procedural unfairness in the decisions of the Director and the Board or any failure on their part to apply high standards of fairness in their consideration of his claim, and that none of the grounds of the applicant was reasonably arguable, nor was there any realistic prospect of success in his intended application.

11.The applicant did not appeal against that decision, but instead on 15 January 2018 filed another Form 86 in these proceedings now before me for leave to apply for judicial review again of the Board’s decision, and in his supporting affirmation he put forward similar complaints as before in his previous application.

12.At the hearing of his application, the applicant was unable to explain why he should be allowed to make another application for judicial review of the same decision of the Board, and merely repeated his claim of still having problems in Pakistan and that he just wanted to remain in Hong Kong.  

13.In the premises it is clearly an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 51/2017, and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

14.For these reasons this second leave application for judicial review by the applicant is hereby struck out and dismissed.

Dated the 2^nd day of August 2019.

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