Case Document

100%Judiciary

HCAL 1828/2018

[2020] HKCFI 1471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1828 of 2018

BETWEEN

	Akram Muhammad Sufyan	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 16 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 28 November 2019.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Court Form 86 is amended 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 on 4 September 2009 and was arrested by police on the same day. He raised a torture claim on 7 September 2009.

5.He claimed that if refouled, he would be harmed because of a dispute with a man named Saleem.

6.He and Saleem were leaders of rival teams of cricket. They played for entertainment. However, in March 2009, he had disputes over the umpire’s rulings and their teams had a fight with bats and stumps. He was attacked and fell unconscious. He received medical treatment with nine stitches. He reported it to police. Saleem’s uncle was a police officer. The police did not follow up the matter. Saleem brought four or five people to his home to look for him. He hid inside. They carried with guns. They spoke foul language to his father. They then left. His father advised him to move to other places. He went to live in his colleague’s home. However, Saleem found out where he was. He went to his place with another person and they hit him with bare hands. He reported to police. They did not take up the matter. Following his father’s advice, he left Pakistan for Hong Kong.

The Director’s Decisions

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 January 2015 (the “Director’s Decision”) and Notice of Further Decision dated 5 April 2017 (the “Director’s Further Decision”) collectively called (the “Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm from Saleem was low [11]; that state protection was available to him [17] and internal relocation was an option open to him [18]. The Director also held in the Director’s Further Decision that he failed to establish BOR 2 risk.

The Board’s Decisions

9.The applicant appealed to the Board against the Director’s Decision. The Adjudicator reported in his decision that the applicant remained silent when the Adjudicator asked him to comment on the country of origin information.

10.By the Board’s Decision dated 6 January 2017, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that Saleem should not be interested in him after a period of seven years and that he should be able to relocate himself within his own country [18].

12.The applicant also appealed to the Board against the Director’s Further Decision. Although he had given some additional information, the Board considered that it was unnecessary to hold a hearing for his appeal. It dealt with his appeal on paper. By the Board’s Decision, it refused the applicant’s appeal and upheld the Director’s Further Decision.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 4 September 2018 for leave to apply for judicial review of the Board’s Decisions.

14.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision. He relied upon the grounds below.

1.     The Board did not properly assess his case.

2.     He did not have free legal assistance for the appeal.

3.     He did not respond to the Director’s letter because he was not legally assisted and the Director assessed his BOR 2 risk without input from him.

DISCUSSION

15.The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer. He admitted that he did not answer the Board’s questions. He said that it was the interpreter, who had advised him to do so. He said that he did not tell the Adjudicator what the interpreter had told him.

16.Although the applicant only applies for leave to apply for judicial review of the Board’s Decision, I decide to take into consideration the Board’s Decision dated 6 January 2017 because the Board had to rely upon the facts stated in that Decision for its assessment of the Director’s Further Decision.

17.Ground (1) is his opinion without any evidence or particulars in support of it.

18.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage. Ground (2) and Ground (3) do not sustain.

19.Although he did not respond to the Director’s letter which requested him to provide further information, if any, in support of his claim, including the BOR 2 risk, he had made written submission to the Board before the appeal hearing. The Board had considered his written submission and decided to proceed to assess his appeal on BOR 2 risk without a hearing, which the Board was entitled to do under the law.

20.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.

21.I do not believe that the interpreter had advised the applicant not to say anything. This is contrary to the purpose of him appearing before the Adjudicator. He should have explained to the Adjudicator why he did not answer his questions when he was required to answer the questions put to him by the Adjudicator.

22.I find that the applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

23.I therefore refuse to grant him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 10^th day of July 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 10/7/2020 Akram Muhammad Sufyan 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 10/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 866/15/2/14/P262 & BOR 385/17/4/34/P113 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1011/14 (formerly RBCZ 2432/09) & RBCZ 9000913/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)