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

HCAL 1795/2018

[2020] HKCFI 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1795 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.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 said letter, the applicant attended the hearing on 16 August 2019.

The applicant

2.The applicant is a Pakistani national. He came to Hong Kong illegally by boat from China on 26 October 2015. He was arrested by police on 27 October 2015 and was referred to the Immigration Department on 28 October 2015. He lodged a non‑refoulement claim on 29 October 2015.

3.In support of his claim, he said that if refouled, he would be harmed or killed by his paternal uncle, Sabir Khan because of a land dispute. In brief, his grandfather had left a piece of land to be shared by his father and his uncle. His uncle had sold his piece of land and he wanted to take the other share belonging to his father. He tried to reason with his uncle. However, he was assaulted by five people with sticks. He was threatened not to make the request for the piece of land. His uncle was associated with political figures of Pakistan Tehreek-e-Inaf. He considered that relocation was not possible as his uncle might be able to locate him. He left Pakistan for Malaysia where he stayed for about five years. Then he was told to leave. He left for China from which he came to Hong Kong.

The Director’s Decision

4.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”).

5.By Notice of Decision dated 14 December 2017 (“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 23 April 2018.

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

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision [44-50] came to the conclusion that the applicant was not a truthful witness and that he had fabricated his case [43]. It did not consider the applicant faced a real risk of Proscribed Harm from his uncle, the cousins or people associated with them [54]. Below are the reasons for the Board’s findings.

a.     There were significant inconsistencies in his evidence given to the Director and the evidence he gave at the hearing [44].

b.     He gave inconsistent evidence as to the ownership of the piece of land [45].

c.     He gave inconsistent evidence as to the size of the piece of land [46].

d.     He gave inconsistent evidence as to whether his uncle had sold his own piece of land [47].

e.     He gave inconsistent evidence in relation to whether his uncle had built a wall around the land. When cross-examined by the Adjudicator, he said that he would return to Pakistan after his problem had been solved, without answering the Adjudicator’s question [48].

f.     He gave inconsistent evidence as to whether his cousins were present when he was attacked [49].

Application for leave to apply for judicial review

9.He filed Form 86 dated 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation, he relied upon the grounds below.

1.     No reasonable basis rejecting his evidence.

2.     Failure to consider extended state acquiescence.

3.     Failure to consider the Country of Origin Information in assessing the risk.

4.     Irregularity of the decision maker.

5.     Failure to place weight on relevant information or selective placing weight on irrelevant information.

6.     Failure to consider a consistent system of human right violations.

7.     Irregularity (placing weight on irrelevant matters, or on inaccurate or incorrect facts.

8.     Procedural impropriety (failure to call psychological and/or psychiatric reports and/or evaluations).

9.     Procedural impropriety (apply the incorrect standard of proof).

10.  No proper basis for consideration of internal relocation.

DISCUSSION

11.The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully to the immigration officer and the Adjudicator. He understood the hearing bundle, the Director’s Decision and the Board’s Decision.

12.I put the Board’s findings above to him and ask him if he had any comments on them. He said that he had no comments.

13.It is obvious that the Board, having considered his evidence and for the reasons given in the Board’s Decision, rejected his evidence as to the fact in support of his claim. He has no factual basis for his application.

14.Grounds (1), (4), (5), (7), (9) and (10) are his opinions without any evidence in support of them.

15.Grounds (2), (3) (6) and (8) are irrelevant to the issues for the Board’s consideration, given the Board having found that the applicant had fabricated his case. They fail.

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

CONCLUSION

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

Dated the 30^th day of June 2020

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