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

HCAL 2400/2018

[2020] HKCFI 1655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2400 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 Court’s invitation, the applicant did not attend the hearing on 6 September 2019. I shall therefore deal with his application on paper.

The applicant

2.The applicant is a national of Pakistan. He came to Hong Kong on 28 November 2016 as a visitor and was permitted to stay until 12 December 2016. He overstayed. He surrendered to the Immigration Department on 15 December 2016. He lodged a non‑refoulement claim by way of written representation dated 19 January 2017.

3.He claimed that if refouled, he would be harmed or killed by his wife’s family because they opposed their matrimonial relationship. He also said that his wife’s family members wanted to stop him to follow up the autopsy of his wife who had died because of being ill-treated and brutality by her family members.

4.Shortly after his love affairs with his wife, her family member learned of their relationship. They attacked him in February 2013. One of her brothers was hold a pistol. He was scared and had to move to other places in order to avoid them. Wife died after giving birth to twins. Before coming to Hong Kong, he had gone to other countries as well.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 20 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 30 July 2018.

8.By Decision dated 24 September 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence. It found that

a.there were gaps, inconsistencies and other problems with the applicant’s evidence, the Board rejected his claims, both individually and cumulatively, in their entirety [83];

b.the Board did not believe he was attacked on 20 February 2013 by his wife’s family [85]; and

c.the applicant can return to Pakistan without any risk [88].

Application for leave to apply for judicial review

10.He filed Form 86 dated 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.He did not set out any reasons in his affirmation in support of his application.

DISCUSSION

12.It is obvious that the applicant failed to establish the facts in support of his claim before the Board.

13.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.

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

CONCLUSION

15.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 27^th 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