Muhammad Ishtiaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1131/2017

[2024] HKCFI 3095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

No order made for the Application.

Observations for the Applicant:

Introduction

1.This is the decision relating to what appears to be the Applicant’s application for assistance in the processing of his application for leave to apply for judicial review (“leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) in HCAL 1039/2022 and to re-open that leave application.

2.By way of background, there are two non-refoulement claimants by the name of Muhammad Ishtiaq at the time. They both came from Pakistan and are supporters of the Pakistan Tehreek-e-Insaf (the “PTI”). They both claim to be in fear of harm or death arising from a land dispute and their persecutors are influential people connected with the Pakistan Muslim League (Nawaz) political party (“PML(N)”).

3.One was born in 1980. He arrived in Hong Kong on 31 July 2015 and made a claim for protection. His alleged persecutor is Zeyarab Khan. He was given an identification number (“RBCL Number”) 2007/15 by the Immigration Department. He completed the two tier screening process. His claim was refused by the Director of Immigration (the “Director”) and his appeal against the Director’s decision was refused by the Board. He applied for leave to apply for judicial review of the Board’s decision under HCAL 1131/2017. His application was refused by the High Court. His appeal against that decision was dismissed by the Court of Appeal which also refused him leave to appeal to the Court of Final Appeal. He has exhausted all avenues of appeal or review. He is currently detained in Castle Peak Bay Immigration Centre (“CIC”), presumably pending removal. He is hereunder identified and referred to as “Claimant 1131”).

4.The second one was born in 1987. He claimed to have entered Hong Kong illegally on 1 November 2019. He made a claim for protection. His alleged persecutor is Safdar. He was given a RBCL number 1743/19 by the Immigration Department. He also completed the two tier screening process. His claim was refused by the Director and his appeal against the Director’s decision was refused by the Board. He also made a leave application in respect of the Board’s decision under HCAL 1039/2022. His leave application is pending. He was given recognizance, released from custody and resides in private premises. He is hereunder identified and referred to as “Claimant 1743”).

5.On 12 September 2024, this Court received a letter from the Applicant dated 9 September 2024 claiming to be Muhammad Ishtiaq with RBCL number 2007/15 who has been detained in Castle Peak Immigration Center “CIC” since 18 December 2023 and is the applicant in HCAL 1039/2022. Except for the RBCL number, that description matched the identity of Claimant 1743. He said he had complaints about his medical condition, the treatment in the hospital and the food in CIC. He complained that despite all that his case officer would not release him from CIC. He said he wants to know about his case, presumably meaning his leave application under HCAL 1039/2022. He sought the Court’s help. The Court has no power to grant him recognizance and order his release from detention. The best it could do is to expedite his leave application.

6.On 24 September 2024, the Court started processing his leave application and invited submissions from him. On the same day, the Court received a similar letter from the Applicant dated 23 September 2024 repeating his earlier requests.

7.By a letter dated 30 September 2024, the Applicant responded. This time, he claimed his RBCL number is 1743/19 and requested the Court to reopen his leave application under HCAL 1039/2022. With his newly claimed RBCL number and assertion that he is the applicant in HCAL 1039/2022, the description he gave of himself fully matched that of Claimant 1039. Hence, the Court scheduled an oral hearing of the leave application in HCAL 1039/2022. It became necessary for the Court to issue a body order to the CIC to bring the Applicant, whom the Court believed to be Claimant 1743, to court to attend the hearing. However, the CIC informed the Court that Claimant 1743 is not in their custody, while Claimant 2007 is. It therefore becomes obvious that the Applicant who has been communicating with the Court from the CIC is Claimant 1131 holding RBCL number 2007-15, whose leave application under HCAL 1131/2017 had been finally disposed of. The Applicant’s masquerade falls. The Applicant’s application by his letters and Claimant 1743’s leave application were then scheduled to be heard on 28 October 2024 separately.

The hearing

8.During the morning session of the hearing, the Applicant confirmed that he is the writer of the letters dated 9, 24 and 30 September 2024, that he is the person identified as RBCL 2007-15 and that he is the applicant of HCAL 1039/22. When he was referred to his letter dated 30 September 2024, he said he is also the person identified as RBCL 1743/19. He said he was given the RBCL numbers by the court’s correspondence. He later added that he was informed of the RBCL numbers by his lawyer. The Court then informed him that it had received two leave applications by two applicants bearing the same name as his and would have to first confirm his identity before proceeding with his application. The Court then stood down the hearing for him to prepare to answer questions from the Court about the facts of his non-refoulement claim for the purpose of ascertaining his identity. While the Applicant’s hearing was stood down, the Court dealt with the leave application under HCAL 1039/2022.

9.The hearing was resumed in the afternoon. Initially, the Applicant repeated under affirmation what he had told the Court earlier. However, after he was shown his supporting affirmation filed in HCAL 1131/2017 after the lunch time adjournment, he reversed his evidence. He admitted that the affirmation was filed by him, that he is the applicant in HCAL 1131/2017, that his leave application had been refused and that his application for leave to appeal that decision out of time had also been refused. He confirmed briefly the facts of his case for non-refoulement protection which he advanced before the Director, that his persecutor is his cousin Khan and he does not know Safdar who is his alleged persecutor mentioned in the decision sought to be reviewed under HCAL 1039/2022. With the background of this application as set out in Paragraphs 1 to 7 above and his admission during the afternoon session of the hearing, the Court is satisfied that the Applicant is not Claimant 1743, but is Claimant 1131 whose application for non-refoulement protection had run its full course and had been finally disposed of.

10.In view of the above, this Court has no jurisdiction to re-open his leave application in HCAL 1131/2017 or to compel the Director to release him on recognizance or to order the Hospital Authority to give him preferential medical treatment. Accordingly, the Court makes no order in relation to his application by letters dated 9, 24 and 30 September 2024.

Dated the 13^th day of November 2024

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

Form CALL-1