Case Document

100%Judiciary

HCAL 1847/2018

[2020] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1847 of 2018

BETWEEN

	Shafiq Muhammad	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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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, 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 12 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally on 17 January 2016, the same day he was arrested by police and referred to the Immigration Department. He lodged a non-refoulement claim on 20 January 2016.

5.He claimed that if refouled, he would be harmed or even killed by the people of Bara Kaho (“people of PML(N)”).

6.His political party is PTI. Members of PML(N) invited him to join them because he had influence over the voters. He refused. PML(N) people turned hostile to him and attacked him. During October and December 2015, he was attacked on four occasions, mostly in the open areas on the streets. They came as a gang of several people. They attacked him by slaps, punches and kicks. He was injured with bleeding nose and wounds on his face and back. He went to hospital for treatment on two occasions. He was scared and he moved to live in his friend’s house. However, his friend was worried that he might be implicated. He left Pakistan for Hong Kong.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 27 February 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by the people of PML(N) upon his return to Pakistan [11]; that state protection was available to him [14] and internal relocation was an option open to him [23]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 May 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that it accepted his evidence. However, his alleged sufferings were not of serious intensity; that there was no evidence of involvement of the state or any state instigation or acquiescence [30-32]; that state protection was available to him [42] and internal relocation was an option open to him [45].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that he did not agree with the Adjudicator’s decision. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His duty lawyer had explained the Director’s Decision to him. His wife had explained the Board’s Decision to him. However, he was not quite clear about the reasons of the Board for refusing his appeal. I therefore explained the Board’s reasons to him. He said that he understood and he did not have any comments on them.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.

16.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 17^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 17/6/2020 Shafiq Muhammad 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 17/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10744/18/3/196/P2072 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3775/17 (Formerly RBCZ 10704/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 2 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration

Cited by 1 case

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Shafiq Muhammad v. Torture Claims Appeal Board

Court of Appeal15 Dec 2020

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