Case Document

100%Judiciary

HCAL 1574/2018

[2020] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1574 of 2018

BETWEEN

	Iqbal Muhammad Asif	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 22 August 2019.

The applicant

2.The applicant is a Pakistani national. He came to Hong Kong on 4 March 2008 illegally from China. On 22 October 2015, he was arrested by police for taking up employment without the authority of the Director of Immigration (“the Director”) and was convicted and sentenced to 15 months’ imprisonment. He lodged his torture claim on 12 May 2008.

3.He claimed that if refouled, he would be harmed or killed by his neighbours, Mr. Fazal Mehmood and three of his sons, Tariq, Safdar and Qamar because in 2007, his goats had run astray to Fazal’s farm and ate the crops there, damaging Fazal’a farm. Fazal’s family were angry with him. About 15-20 days later, Tariq and Safdar approached him. They slapped and kicked him for five minutes. He went to report to police. They took no action. Two months later, he was driving a tractor with mechanical problems. He accidentally ran on the leg of Safdar’s son, causing severe bleeding. He was assaulted by Tariq and Qamar with some unknown objects. He sustained bruises all over his body and an open wound of two inches long. They also threatened to kill him. He escaped and upon advice of his friend, he left Pakistan for Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”);

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”).

5.By Notice of Decision dated 8 December 2016, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 15 May 2017.

7.By Decision dated 16 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence. It set out its reasons in its Decision from paragraph 33 to paragraph 45. It came to the conclusion:

“6. ... …While the Board accepts the Appellant’s livestock may have grazed upon his neighbour’s property, causing them some consternation at the time, it does not accept that they would seek to harm the Appellant now, some 11 years later. Nor, the reasons outlined below, does the Board accept the Appellant’s claims in relation to running over a child’s leg as credible.

46. The Board has considered the Appellant’s claims both individually and cumulatively, but in light of the findings above, the Board does not consider that he would face a real risk of suffering proscribed harm should he return to Pakistan in the reasonably foreseeable future. Based on the evidence as a whole, the Boards finds for the reasons that follow that the Appellant’s case for non‑refoulement has not been made out.”

Application for leave to apply for judicial review

9.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, he simply said that he wanted to review the Board’s Decision because it disregarded his dangerous situation.

DISCUSSION

11.The applicant appeared before me. He confirmed that he was free to speak before the Immigration officer and the Adjudicator.

12.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

13.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

14.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 4^th day of June 2020

	(Mike Mak)
	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: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 4/6/2020 Iqbal Muhammad Asif Applicant’s ref. no: Nil.		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 4/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5602/16/12/249/P1253 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2173/16 (formerly RBCZ 12414/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)