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HCAL 1559/2020
[2024] HKCFI 1647
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1559 of 2020
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BETWEEN
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Muhammad Jamil |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. By an Order of the court dated 31 December 2021, the court, upon the applicant’s application, granted leave to the applicant to withdraw this action.
2. By summons dated 11 March 2024, the applicant applied for re-opening the claim withdrawn. He relied on the reason that his problem in his country has not yet resolved.
3. By virtue of Order 21, rule 3(1) of the Rules of the High Court (“RHC”), the court retains jurisdiction over the action withdrawn.[1] This Court therefore granted leave to the applicant to re-open his action and directed that the application should be conducted on paper.
4. The applicant applies for leave to apply for judicial review of the Decision dated 14 July 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
5. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
6. The applicant, aged 43, is a Pakistani. He entered Hong Kong illegally on 4 June 2011 and was arrested by the police on 4 July 2011. The applicant made a torture claim on 6 July 2011, which was rejected on 13 January 2014. On 24 February 2014, the applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[2]. The claim was made on the basis that, if refouled, he, who supported the Pakistan People’s Party (“PPP”), would be harmed or even killed by a Mr Altaf, a member of the Pakistan Muslim League (“PML(N)”).
7. According to the applicant, he operated his own restaurant business. He and his family were PPP supporters. In January/February 2009, the applicant, his father and brother started to receive anonymous threatening phone calls from people of Mr Altaf, which continued for 4-5 months. In February/March 2009, people from Mr Altaf refused to pay after eating at the applicant’s restaurant, and they even damaged the chairs and tables at the restaurant. On one or two occasions, Mr Altaf also came and threatened to kill him. Although the applicant and his father had made three complaints to the police, they refused to accept their case. On the last occasion, the police even arrested them for making a false complaint. The applicant found out later that the police sided with Mr Altaf as he had seen them dining at his home.
8. One day in October/November 2010, Mr Altaf together with some armed men brought construction materials to the farmland of the applicant’s father. The applicant together with his father and brother then went to the farmland to confront Mr Altaf and his group, bringing along two machine guns. Subsequently, a dispute broke out and gunshots were fired between the two groups. The applicant’s father and brother were killed while the applicant managed to escape into a jungle.
9. The applicant returned home the next morning and learnt that three underlings of Mr Altaf were shot dead. Fearing that he might be revenged and/or arrested, the applicant relocated away from his hometown. He stayed in a hotel for around a month, but he felt someone was tracking him. The applicant therefore went to Karachi in around November/December 2010. He kept contact with his mother by phone and she told him that Mr Altaf threatened to kill him and the police wanted to arrest him for murder. In the meantime, the applicant also received threatening phone calls from the underlings of Mr Altaf. Out of fear, the applicant left Pakistan for China on 28 May 2011. His agent paid a bribe to the immigration staff at the airport to ensure that he could pass through unhindered. Eventually, he sneaked into Hong Kong from Shenzhen on 4 June 2011.
10. The applicant maintained contact with his mother while in Hong Kong. She told him that Mr Altaf continued seeking for his whereabouts. Meanwhile, the police also came after him with an arrest warrant. The applicant’s mother also informed him that Mr Altaf had built a building on his father’s farmland. Although complaint was made to the police, they did not take any action.
11. The applicant was of the view that he could not seek protection from the police because they sided with Mr Altaf. He also considered internal relocation within Pakistan not viable because he believed that he would be found by Mr Altaf.
12. Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 15 October 2018 (“the Director’s Decision”).
The Director’s Decision
13. The Director considered the applicant’s claim in relation to the following risks:
a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
14. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the behaviour of Mr Altaf showed he had no real intention to seriously harm or kill the applicant, so that the perceived risk of harm was not as imminent as claimed. As for the police, the Director considered that they were after the applicant merely for investigation of the gunshot murder incident and that there was no indication that he would not receive a fair trial, according to the country of origin information (“COI”). In any event, the applicant’s delay in seeking protection also cast doubts towards his credibility [14]-[18].
15. Furthermore, (i) state protection would be available to him [19]-[25]; (ii) internal relocation would be viable [26]-[29] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35] or Persecution risk [36]-[40].
The Board’s Decision
16. The applicant appealed the Director’s Decision to the Board. On 15 October 2019, the Board conducted an oral hearing.
17. The Board found the applicant’s claim regarding his and his family support for PPP vague [37]. The applicant’s evidence about his father’s farmland was also equivocal, where he gave inconsistent evidence regarding the location and dimension of the farmland and he claimed that Mr Altaf used fraudulent documents to register the land in his own name, which was never mentioned before [38]-[42]. As to the gunshot incident, the Board considered that the applicant had indeed fired shots at Mr Altaf and his underlings, so that any charge against him would not be false [45]. In any event, even though the applicant may face death penalty, COI showed that he would likely receive a fair trial and the Board were of the view that it would be part of a lawful sanction due to the seriousness of the crime of murder [47], [49]. Furthermore, the applicant’s evidence regarding the payment of the bribe at the airport was also ambiguous [50] and there were inconsistencies as to when he knew about the arrest warrant [51].
18. The Board found the applicant not credible due to the material inconsistencies in his evidence, as well as his vague and implausible explanations. The Board rejected the applicant’s claim entirely and did not accept that he came to Hong Kong because of the claimed fear. Rather, it considered that the applicant had fabricated his claims simply to create a basis to apply for non-refoulement claim protection [52].
19. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [18]-[31], [57]-[63]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
20. The applicant has filed Form 86 on 24 July 2020 for to apply for leave for judicial review of the Board’s Decision.
21. In the affirmation in support of this application, the applicant did not set out any specific ground.
DISCUSSION
22. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
23. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
24. 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.”
25. For the reasons given by the Board as mentioned in paragraph 17, supra, the Board dismissed major parts of the evidence in support of the applicant’s claim. The applicant has raised no valid reason to challenge the Board’s finding of the facts. There is no reason that this Court should interfere with the Board’s Decision.
26. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
CONCLUSION
27. 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 4th day of July 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 4/7/2024
Muhammad Jamil
Applicant’s ref. no:
Nil |
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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 4/7/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14050/18/10/392/P2787
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3454/18 (Formerly RBCZ/2002699/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1]. “3. Discontinuance of action, etc., with leave (O. 21, r. 3)
(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counter-claim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”
The provision of “on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just” provides power for the court to deal with the withdrawn action, especially with regard to the conditions imposed.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
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