Case Document

100%Judiciary

HCAL 2608/2018

[2020] HKCFI 1738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2608 of 2018

BETWEEN

	Tallat Mehmood	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 the Applicant being absent 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.The applicant is absent for this hearing. There being no evidence to show that the Notice of Hearing was not served on him, his absence without prior notice or explanation demonstrates that he has waived his right of being heard for his application. I shall proceed to consider his application on the papers only.

The applicant

2.The applicant is a Pakistani national. He came to Hong Kong on 25 December 2015. He was arrested by police on 27 December 2015 and was referred to the Immigration Department on 28 December 2015 for investigation. He lodged his non-refoulement claim on 29 December 2015.

3.He claimed that if refouled, he would be killed by the Butt Brothers, his political opponents from Pakistan Muslim League (Nawaz) because he was a supporter of Pakistan Muslim League (Quaid e Azam Group) and they believed that he was involved in the murder case of their brother, Khawar Butt.

4.In 2014, he and his uncle were falsely arrested by police for a case of rape. They paid the bribe for their release. He moved to Oman for an employment. In February 2015, he returned to Pakistan. He was then arrested and detained by police for a murder case. During the period of detention, he was tortured by being poured with water into his nose. The case was dropped without going to court. In November 2015 he was attacked by the Butt family and other people on the road after shopping. They hit him with wooden poles. He was injured on his shoulder, temple and nose. He received medical treatment in hospital. He had to stay at home for one to one and a half month for recovery. He decided to come to Hong Kong because he could not go back to Oman for the reason that he had a dispute with his employer, who had cancelled his visa.

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 28 March 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 2 August 2018.

8.By Decision dated 22 October 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 his evidence was not believable for the reasons set out in paragraph 77 of the Board’s Decision and his evidence was vague and very contradictory [83]. It finally came to the following conclusions.

a.The applicant was not a witness of truth and that he fabricated claims in relation to the Butt brothers [81].

b.The Butt brothers were not interested in him and he did not have a conflict with them [86].

c.He did not leave Pakistan because he feared harm from the authorities or the Butt brothers [87].

d.There was not a real risk he would face any of the proscribed forms of harm should he return to Pakistan [88].

Application for leave to apply for judicial review

10.He filed Form 86 dated 19 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he relied upon the grounds below. I shall limit them relating to the Board only.

1.The Board did not address his grounds of appeal against the Director’s Decision. He was doing the case more or less of a templet basis.

2.The Board had put undue weight on the Country of Origin Information (“COI”) on state protection.

3.He did not have legal representation for this application for leave to apply for judicial review.

4.It was unfair, unreasonable and illogical for the Board to give no credence to his evidence.

5.The Board had failed to apply the way evidence should be assessed for torture claim cases as laid down by the Court of Appeal in Shafqat Ali v Betty Kwan and Others (unreported, HCAL 74/2012, 17 December 2013).

6.The Board did not explain why it did not accept his memory problem – sometimes he could not give exact date.

7.It was unreasonable for the Board not to accept his evidence that he had lost his uncle’s contact in the UK.

8.The Board’s Decision was not interpreted to him. So, he was unable to understand the reasons behind its rejection of his evidence.

DISCUSSION

12.The applicant was absent. I have not been able to hear from him in relation to what happened at the hearing before the Board.

13.The Board had pointed out to the applicant at the hearing why it did not believe his evidence as set out in paragraph 77 of the Board’s Decision. The Board had also set out the reasons in its Decision why it found his evidence not credible and that he had fabricated his story.

14.The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

15.This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

16.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.

17.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. Ground (3) fails.

18.The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as he may desire [16]. Ground (8) fails.

19.I shall deal with the other grounds.

20.Grounds (1), (2), (4), (5) and (7) are his opinions without any evidence or particulars to support them.

21.The Board had set out the cautions that it should bear in mind when assessing the evidence and the Adjudicator had given his reasons for his decisions. The evidence has to be assessed individually and cumulatively. Ground (6) fails.

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

CONCLUSION

23.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 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 Tallat Mehmood 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 11191/18/4/201/P2170 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 753/18(formerly RBCZ 10318/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)