Afaq Muhammad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2984/2018

[2019] HKCFI 2750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2984 of 2018

BETWEEN

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:

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”).

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong on 8 February 2015 illegally. He surrendered to the Immigration Department on 23 February 2015.

3.In his statements given to the Director of Immigration (“the Director”) and the Board, he said that if refouled, he feared that he might be harmed by Abdul Rasheed (“Rasheed”) because Rasheed demanded money from him for his loss in a car accident with him.

4.The applicant was a self-employed rented car driver in Pakistan. In December 2014, he had had an accident with another vehicle, which was being driven by Rasheed together with other three people. Rasheed blamed him for the accident. He denied responsibility whereupon they beat him up with bare hands. He was injured. He finally yielded and agreed to pay compensation to Rasheed. A few days later, Rasheed called him and said that he had suffered more than what he had paid for compensation and he demanded more money from the applicant. Rasheed threatened him that if he did not pay more compensation, he would beat him up. He was scared. Rasheed called him from time to time. He told his mother about this. His mother advised him to leave Pakistan. She asked his brother who was working in Barcelona in Spain to assist him to leave Pakistan. His brother did so and arranged him to go to China, then 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 10 January 2018 (“the Director’s Decision”), the Director refused 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 12 October 2018.

8.By Decision dated 17 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [64-75], it concluded:

“83. …I do not accept the appellant is of any adverse interest to Rasheed, or to Rasheed’s friends, relatives or associates. Nor do I find the appellant is of any adverse interest to the supporters of the PML(N) [the Muslim League Nawaz PML(N)], or to the police in Pakistan, or to anyone else. I also do not accept that Rasheed is motivated, or has the influence, to marshal the efforts or influence of Chaudhry Nadeem Khadam, or of anyone else associated with the PML(N) to harm the appellant in any way for any of the reasons he claims ….”

10.In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application dated 27 December 2018, the applicant relied upon written submissions, which I shall summarize as follows.

1.     Procedural impropriety – failure to properly apply para 2 of the UN committee against Torture General Comment No 2 whereby satisfaction of a National states [sic] obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event.

2.     Procedural impropriety – failure to afford an opportunity to present his case in an oral hearing in breach of the principles set out in the Court of Appeal Decision of ST v Betty Kwan & Anor (2014) 4 HKLRD 277.

3.     Procedural impropriety/irrationality – failure to give sufficient reason to support conclusion in relation to BOR 3 risk.

4.     Error/misdirection in law – failing to take into account the consideration of psychological strain and threats to him personally or threats to kill him.

DISCUSSION

The Board’s Decision

12.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained it to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.

13.I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

14.It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16.Grounds (1) is his opinion without any evidence in support of it.

17.Ground (2) is not true. He had attended a hearing before the Adjudicator of the Board.

18.Ground (3) is not true. The reasons have been given in the Board’s Decision. They are sufficient reasons.

19.Ground (4) is not sustainable because he had not raised it before the Board at the hearing.

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

CONCLUSION

21.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 8^th day of November 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