Case Document

100%Judiciary

HCAL 2773/2018

[2021] HKCFI 2150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2773 of 2018

BETWEEN

	Iqbal Muhammad Azhar	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 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of Pakistan. He came to Hong Kong illegally on 19 May 2016. He surrendered to the Immigration Department on 20 May 2016. He lodged non-refoulement claim with the Immigration Department on 9 August 2016.

5.He claimed that if refouled, he would be harmed or killed by the Shia Muslims because he was the Imam of the mosque and he had witnessed the murder of his religious leader Mufti Younas.

6.Since he was an Imam, he taught the children on Sunni Muslims, which the Shia Muslims opposed. In or about November 2015, there were three occasions where he was attacked by the Shia Muslims with kicks and punches, wooden sticks and burns with cigarette. He fell unconscious and had bruises all over his body. They threatened to kill him if he continued his teaching. On the third occasion, he saw the Shia Muslims escaped whilst his religious leader Mufit Younas had been shot and lay on the ground. He had complained to police, but the police officer did not take his case. He received threats phone calls warning him to withdraw from being an imam and not to stand as witness of the murder case or he would be killed. He decided to leave Pakistan with the assistance of his distant relative. Details of his story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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

a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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”).

8.By Notice of Decision dated 16 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to Pakistan [11]; that state protection was available to him [17] and internal relocation was an option open to him [20].

The Board’s Decision

9.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 14 September 2018.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board had conducted protracted cross-examination on his evidence and it came to the conclusion at paragraph 67:

“Given these multiple problems with almost every aspect of the Appellant’s account, I do not accept that he left Pakistan for the reasons claimed. Because there are such serious problems with his credibility, and the Appellant has demonstrated, in my view, a willingness to fabricate claims and evidence, I have substantial doubts as to whether he was even an imam or a teacher in a mosque, as he claims…. I do not accept that the Appellant was assaulted or threatened by Shia Muslims in his village. I do not accept that the imam of his mosque was killed in the circumstances described…. I do not accept that the Appellant was compelled to leave Pakistan because his life was in danger there. I do not accept that he is at risk of harm on return from Shia Muslims in his home area.”

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 5 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he set out a litany of grounds which are massive and repetitive. He had also annexed the grounds in support of his application of 25 pages. I shall summarize the grounds relevant to his case below.

(1) Error of law: failing to consider state acquiescence or the extended form of state acquiescence; failing to give weight to relevant information, but giving weight to irrelevant information instead; failing to consider consistent system of human rights violations; failing to consider the COI; apply improper basis for internal relocation; no proper basis to reject the applicant’s evidence;

(2) Procedural unfairness: failing to provide interpretation for the hearing bundle; failing to provide legal representation at the Board’s hearing; failing to call for psychiatric reports; insufficient inquiry into the matter; failing to provide hearing for BOR 2 risk;

(3) Wednesbury unreasonableness or irrationality: cherry pick COI materials not officially recognized or hearsay evidence; coming to conclusion despite shortcomings of the above.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, 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 [22].

16.The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held:

“13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].”

17.His grounds in support of his application are sweeping and quite irrelevant to his case. For example, he did not raise the issue of psychiatric problems himself before the immigration officer or before the Board. There is simply no ground for him to raise this complaint. Those authorities above have addressed his complaints. The other complaints are his opinions and comments without any evidence or specifics in support of them. They do not assist his application. The Board had rejected his evidence on the facts of his claim. He has no factual basis in support of his claim.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 27^th day of July 2021

	(M.O. WONG)(Ms)
	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 27 July 2021 Iqbal Muhammad Azhar 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 27 July 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10074/18/1/347/P1944 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3282/17 (Formerly RBCZ 12976/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)