Case Document

100%Judiciary

HCAL 2733/2018

[2022] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.2733 of 2018

BETWEEN

	Hafeez 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 26 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with 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 18 September 2015 and was arrested by the police on the same date. He lodged a non-refoulement claim on 20 September 2015. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Pakistan Muslim League (Nawaz) (“PMLN”) because they wanted to occupy the applicant’s business.

5.According to the applicant, he had been a supporter of Pakistan Tehreek-e-Insaaf (“PTI”) since 2013. In around 2013, three members of PMLN sought to occupy the applicant’s farming and livestock business. They also asked him to leave PTI or otherwise they would kill him. The applicant escaped to his friend’s place but heard that the members were still looking for him. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim were set out at paragraph 7 of the Director’s Decision as 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 a Notice of Decision dated 23 January 2018, the Director refused his claim for the reason that the level of risk of harm from the three members of PMLN was assessed to be low because (i) after assessing the applicant’s evidence, the alleged past ill-treatment did not indicate a likelihood of future risk of harm [13]-[16]; (ii) state protection was available to him [17]-[23]; and (iii) internal relocation was an option open to him [24]-[28].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. He attended the scheduled hearing on 13 September 2018, during which he answered the Board’s inquiries with the assistance of an interpreter [18].

9.The Board considered that the applicant’s conducts reflected adversely on his overall credibility, in particular the fact that the applicant failed to disclose the language he uses to the Immigration Department but subsequently complained that he was not offered with the accurate interpretation service [32]-[33]. It also observed that the applicant was unable to provide evidence or was invasive and inconsistent in relation to the material aspects of his claim [34]-[38]. Viewing the evidence in totality, the Board found the applicant’s evidence to be unsatisfactory [39]. In any event, internal relocation was available to the applicant [40]-[42]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he complained that the decision of the Immigration Department disregarded his dangerous situation.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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(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.”

15.The applicant has not given any valid ground to challenge the Board’s Decision. His complaint is only his opinion without any evidence in support of it.

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 to the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 28^th day of March 2022

(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 28 March 2022 Hafeez 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 28 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10172/18/2/56/P1959 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3778/17 (Formerly RBCZ 13457/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)