Case Document

100%Judiciary

HCAL 2149/2018

[2022] HKCFI 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2149 of 2018

BETWEEN

	Farooq Muhammad	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 3 August 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 national of Pakistan. He entered Hong Kong illegally on 17 December 2015. On 13 January 2016, he surrendered to the Immigration Department. On 20 July 2016, he raised a non-refoulement claim but later requested it to be withdrawn. On 10 January 2017, he requested to reopen his non-refoulement claim. His request was acceded to and his non-refoulement claim was assessed on all applicable grounds. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his creditor’s brother. He also feared that he was wanted by the police because of his creditor’s death.

5.According to the applicant, in around 2009 or 2010, he borrowed money from Asif to develop his computer business. However, in mid-2010, Asif was shot to death because of a suspected monetary dispute. Asif’s brother Aslam accused the applicant of killing Asif and attempted to take revenge on him. A few months later, Aslam and his followers vandalized the applicant’s shop and killed the applicant’s business partner. The applicant then left for other villages where he heard from his wife that the police were investigating him for Asif’s death. Later, the applicant’s camp sought to initiate peace with Aslam who demanded a high loan repayment. The applicant could not afford to pay. Out of fear, he eventually fled to Hong Kong for protection. While he was in Hong Kong, he heard from his family that they were threatened and hurt by Aslam. Details of his story are set out in paragraph 7 of the Director’s Decision and paragraph 6 of the Board’s Decision described below.

The Director’s Decision

6.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”);

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”).

7.By Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to Pakistan was assessed to be low [14]-[16]; that state protection would be available to him [17]-[20] and that internal relocation was an option open to him [21]-[25].

The Board’s Decision

8.He appealed against the Director’s Decision to the Board and attended a hearing on 7 May 2018, during which the Board explored with the applicant various material aspects of his claim [13]-[42].

9.Having considered the applicant’s evidence, the Board dismissed his appeal. The Board refused to accept that the applicant was of interest to Aslam or the Pakistani police. The Board found that the applicant was able to leave and enter Pakistan freely and that he was able to live in several areas in Pakistan for approximately two years after the death of his business partner [45]-[47]. It also found that, even on the applicant’s own evidence, he had never suffered any physical harm from Aslam and associates. Further, the applicant had never taken steps to repay the loan which indicated that the debt issue was not credible [48]-[51]. The Board also considered the country of origin information and concluded that internal relocation was available to the applicant [53]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 8 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said “Sir, I am very afraid to go back my country because my enemy still looking [for] me…they want to kill me. Please safe my life and consider my case.”

DISCUSSION

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

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

“13(1) .… …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.”

14.The Board did not accept his evidence on the facts of his case. Therefore, he has no factual basis in support of his claim.

15.He does not have any valid ground to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.

19.Accordingly, I dismiss his application.

Dated the 7^th day of February 2022

	(Chasel MAN)
	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 7/2/2022 Farooq Muhammad 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 7/2/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8671/17/10/1/P1711 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1579/17 (formerly RBCZ 10254/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)