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

HCAL 1812/2018

[2020] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1812 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 of the Decision dated 20 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 4 December 2019.

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

The applicant

4.The applicant is a Pakistani national. He had come to Hong Kong and was repatriated on 8 February 1996. On 5 May 2004, he sneaked into Hong Kong illegally. He lodged a torture claim on 9 August 2005.

5.He claimed that if refouled, he would be harmed or killed by his political enemies, Chaudhary Tariq Farooq (“Farooq”).

6.He had made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatments of Punishment (now referred to as Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) and his claim was rejected on 15 November 2012. He petitioned to the Chief Executive and was rejected by the Appeal Board on 31 December 2012.

7.The reasons for his leaving Pakistan and not returning are set out below.

a.     Since 1992, he became a member of the Pakistan People’s Party (“PPP”) and Farooq was a member of the AJK Muslim Congress (“MC”), rival party. The applicant was popular because he was able to summon voters. In 2003, Farooq invited him to join his party. He refused, whereupon five or six of Farooq’s people assaulted him with rifle butts and he was injured.

b.     On 24 July 2003, he and his 5 relatives were taken to the airport. On the way, they were shot by 6 men with rifles. They were Farooq’s men. They shot 100 to 150 rounds at the car. He managed to escape. However, he was shot in the leg and his two other relatives were also shot. He received medication but the bullet remained in his leg.

c.     He decided to leave Pakistan for Hong Kong. In April 2004, he sold his business and hired an agent for him to come to Hong Kong. Prior to his departure, his wife gave birth to a daughter, who was ill and died. His mother was ill and also died in 2005.

d.     In 2009, whilst he was in Hong Kong, he was informed by his wife that a neighbour, Mr. AH, who was a MC member, a retired police officer, had taken over her home though the property was still registered in her name.

e.     His wife also told him that police had framed him up for the murder of three PPP members whilst they were on their way to the court. He would be arrested by police if he returned to Pakistan.

f.     Farooq was elected minister and he was politically influential. He could not relocate himself in Pakistan.

The Director’s Decision

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

a.     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”);

b.     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

c.     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”).

9.By Notice of Decision dated 13 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed as low [12]; that state protection was available to him [31] and internal relocation was an option open to him [35]. His claim under BOR2 risk was not established.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 4 June 2018 and 3 July 2018.

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

12.The Board considered the applicant’s evidence and concluded at paragraph 77:

“77. … But for reason of the above multiple and material inconsistencies and implausibilities in the evidence of the Appellant and his reliance on non-credible documents, as well as his non-persuasive explanations, I consider the Appellant is not a credible witness both in relation to his claims related to PPP and his claims related to the land dispute.

78. …I consider the Appellant has fabricated these claims to create a basis upon which to apply for non-refoulment.”

13.See paragraphs 44-78 of the Board’s Decision.

Application for leave to apply for judicial review

14.The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, he said he was not satisfied with the Board’s Decision and that the Board had not considered and taken into account of the related documents of his case.  

DISCUSSION

16.The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. However, he disagreed to the Board’s Decision.

17.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.

18.The reasons he stated above would not assist him. There were no particulars in support of his complaints.

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

CONCLUSION

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

Dated the 9th day of July 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