Case Document

100%Judiciary

HCAL 2585/2018

[2020] HKCFI 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2585 of 2018

BETWEEN

	Muhammad Ashraf	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 31 October 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 November 2019.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replaced by Director of Immigration (“the Director”) as the respondent.

The applicant

4.The applicant is a Pakistani national. He first came to Hong Kong in 2003 under a passport in the name of Mozam Ali as a visitor. He overstayed without permission and was arrested, charged and convicted. He was repatriated on 20 February 2004. He came to Hong Kong again under a passport in another name of Muhammad Ashraf as a visitor and was permitted to stay as such. On 26 January 2005, he registered a marriage with a Hong Kong female. On 28 January 2005, he applied to the Director for dependent visa and was refused. Since 13 October 2005, he overstayed. On 19 April 2010, he was arrested by police for overstaying. He claimed that Muhammad Ashraf was his true identity. He was charged, convicted for the offences and was sentenced for 14 months’ imprisonment. On 4 October 2010, he raised a torture claim. His application was rejected by the Director on 26 January 2012. He was detained in Castle Peak Bay Immigration Centre after discharge from prison. He is now on recognizance. By written representations respectively dated 4 October 2010 and 11 June 2013, he lodged a non‑refoulement claim.

5.He had given his statement to the Director and the Board. His long story for his leaving Pakistan is set out in paragraphs 27-52 of the Board’s Decision. What follows is a brief summary in relation to his claim.

a.He was a supporter of a party, which belonged to the Sunni sect and he was in fear of ill-treatment by the Shia community if he returns to Pakistan.

b.In 1990, because of a bomb murder of an Iran ambassador, he was suspected of being one of the culprits and he was being hunted by police.

c.He moved around and lived in various places in Pakistan in order to avoid the police between 1990 to 1999. His brother was taken to police station where he was tortured for information of his whereabouts.

d.There were instances where he was shot by gun and fortunately, he was not injured. However, he was tortured by police when he reported the matters to police. On one occasion, he was attacked by police officer on the street and he fell unconscious.

e.He contracted an agent, who prepared a fake passport for him to come to Hong Kong.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 28 November 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his evidence was doubtful in credibility [18], see also §§19-26; that state protection was available to him [27] and internal relocation was an option open to him [30].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 29 June 2018.

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

10.The Board considered the applicant’s evidence and was of the view that for the reasons set out in §§53-74, it did not accept that he would face a real chance or real risk of serious or significant harm on his return to Pakistan [74]; that he would face a real chance or risk of being targeted in sectarian violence [75] and that his marriage would not assist him in his application [76]. See also §§78-80 for each of the risks’ conclusion.

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 16 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.He relied upon the grounds below in support of his application.

1.Procedural impropriety/unfairness - failure to investigate the country of origin information of Pakistan; failing to call for psychological and/or psychiatric reports and/or evaluation; apply the wrong standard of proof.

2. Irregularity – failing to give weight to relevant materials or failing to selectively giving weight to irrelevant materials.

3.Irrationality – failing to consider consistent system of human right violations failing to consider state protection.

4.No reasonable basis for rejecting his evidence.

5.Failing to consider the extended form of state acquiescence.

6.Failing to consider the experts in assessing the risk.

7.No proper basis for assessing internal relocation.

DISCUSSION

13.The applicant appeared before me and he asked for an adjournment because he was affected by the tear gas on his way coming to court. He said that he could not think well and that he might not be giving the correct answers to my questions. He also refused to sign on Form 86 for rectification of the errors.

14.I refused to adjourn the matter as even if he refused to answer my questions, I would still be able to assess his case justly without his assistance. My main questions relate to whether he was treated fairly at the hearing before the Board. I also want to explain to him the meaning of judicial review. In any event, he told me that he was free to express himself before the Adjudicator.

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. the applicant cannot complain that the Board had not considered the evidence which he/she did not adduced at the appeal hearing unless the Board has the duty to elicit such evidence on its own volition.

16.All those grounds above will not assist him as some of them are his opinions without any evidence or particulars in support of them, the others are simply not relevant to the findings of the facts by the Board.

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

CONCLUSION

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

Dated the 29^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 29/7/2020 Muhammad Ashraf 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 29/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9492/17/12/159/P1852 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3170/17; RBCZ 11717/17 (formerly RBCZ 2000658/14; RBCZ 1531/10) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)