Case Document

100%Judiciary

HCAL 2327/2018

[2022] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2327 of 2018

BETWEEN
	Shafig 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.The applicant applies for leave to apply for judicial review of the Decision dated 7 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 18 March 2016 from China and was arrested by police on 18 March 2016. By written significations of diverse dates between April and May 2016, he lodged non-refoulement claim on the ground that, if refouled, he would be harmed or killed by some members of the Pakistan Muslim League (Nawaz) (“PML(N)”).

5.According to the applicant, he was a supporter of Pakistan Tehreek-e-Insaf (“PTI”). He helped organize the events and attended party rallies and meetings. In 2015, there was a local election, in which he assisted in promoting PTI for more votes together with other members. Suddenly, about 100 PML(N) members came to attack him and the others. Someone had fired shots. He was injured and he managed to escape. He did not report this incident to police as he knew that PML(N) was influential and they might frame up charges against him. Then the PML(N) members accused him of firing the shots and threatened to kill him. He went to live in his friends’ places. The PML(N) people went to his family for his whereabouts. When he was living in Jamsheed’s home, the PML(N) people saw him and came to hit him with wooden sticks and metal rods. Some of them carried pistols. They also threatened to kill him. He had a fractured shoulder and swollen arms and legs as a result. He fell unconscious and was helped by his friends to receive medication. Finally, on 10 March 2016, he left Pakistan for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim 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 2 December 2016 (“the Director’s Decision”), the Director refused the applicant’s claim on Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk from the PMLN members upon his refoulement was assessed to be low or unlikely to materialize because on the applicant’s evidence, there was no severe pain and suffering amounting to torture or BOR3 risk [13-20]. Further, there was no evidence to show that the state was involved although he alleged that PML(N) members were involved, there was no concrete evidence to support this allegation [45-47]. State protection was available to the applicant [48-66]. Finally, internal relocation was an option open to him [67-78].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 17 July 2018, the Board conducted an oral hearing for his appeal. The applicant and the interested party were legally represented.

9.Having considered the evidence, the Board found that the applicant was only a low rank PIT member and therefore, he should not be a target of the PML(N). The Board did not accept his evidence, but held that it was his imagination to say the PML(N) members took him as the one who had fire shot and killed one of their members. He had not suffered severe pain or suffering. There was no reason for him to come to Hong Kong to seek protection [23]. The Board further found that state protection would be available to him [27-29] and that internal relocation was an option open to him [49-53].

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 24 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant exhibited the Board’s Decision without specifying any ground in support of his application.

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 applicant’s 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 Decisions 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 been able to raise 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 19^th day of April 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 19/4/2022 Shafig 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 19/4/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5543/16/12/190/P1242 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2460/16 (formerly RBCZ 12766/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)