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HCAL 2518/2018
[2020] HKCFI 1103
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2518 of 2018
BETWEEN
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Sufyan Muhammad |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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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;
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 8 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) with the Director of Immigration (“the Director”) as interested party.
2. He requested a hearing for his application and a hearing was fixed for him. However, he was absent without any prior notice or explanation. In the circumstances, this Court, for the purpose of case management, will treat him as waiving his right of hearing and shall proceed to consider his application on paper.
The applicant
3. The applicant is a Pakistani national. He came to Hong Kong on 18 April 2015 illegally. On 4 August 2015, he was arrested by police and was referred to the Immigration Department. On 8 August 2015, he lodged his non-refoulement claim.
4. He claimed that if refouled, he would be harmed or killed by his ex-girlfriend’s brother Riaz.
5. He left India because of the following incidents.
a. He started a relationship with a girl called Rehnaz in 2014. Her brother, Riaz, knew of this and opposed their relationship. They continued their relationship despite her brother’s objection.
b. At the end of 2014, Riaz killed Rehnaz. He was arrested, but was released because his family had connection with Pakistan Muslim League (N)(“PMLN”).
c. He had to move to other friends’ places in order to avoid Riaz. He believed Riaz would kill him too. In early 2015, he met Riaz in a market. Riaz pulled out a gun and shot him. He managed to escape.
d. He moved around and found himself very depressed. He took his friend’s advice to come to Hong Kong.
The Director’s Decision
6. The Director considered his application in relation to the following risks:
a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);
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 15 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision and he attended the hearing on 5 September 2018.
9. By Decision dated 8 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence. It came to the conclusions below.
a. The Board was not satisfied in relation to the claims made by the applicant regarding his relationship with Rehnaz, Rehnaz’s subsequent death at the hands of her brother Riaz, Rehnaz’s family involvement with the PMLN, and/or any related claims [48].
b. The above conclusions were reached because the applicant’s evidence was unconvincing [49]; his evidence was contradictory [50]; his evidence was vague to be unsubstantiated [51, 54, 55].
c. The Board was unable to find from Country of Origin Information which put a male at risk of an honour killing in Pakistan [58].
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 9 November 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of this application, he relied upon the grounds below:
1. the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;
2. the contents of the hearing bundle were in English and he was unable to obtain interpreter service;
3. he was confused at the appeal hearing;
4. the Adjudicator was unfair and had not given greater care to a self-represented claimant;
5. the Adjudicator had misdirected herself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;
6. the Adjudicator had applied the incorrect standard of proof;
7. the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;
8. the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;
9. the Adjudicator had relied upon hearsay information and outdated material in relation to COI;
10. the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;
11. the Adjudicator had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favourable to his case;
12. the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;
13. the Adjudicator was wrong in state protection in his country;
14. BOR 2 risk was assessed without screening;
15. the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and
16. the applicant was not legally represented or given legal assistance for him to be before the Board.
DISCUSSION
13. The Court of Appeal in Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A. held that the burden of proof is on the applicant.
14. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.
15. 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.”
16. The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) at §42held that the Board’s decision is final, subject to judicial review. However, there is no evidence to show that the Board erred in coming to its decision.
17. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.
18. The Board had given its reasons for rejecting the applicant’s evidence in support of his claim. The applicant has no factual basis for his claim.
19. Grounds (1) to (3) fail in light of Re Khan MD Omar and the applicant did not identify any problem at the hearing; grounds (4) to (13) are his opinions without any evidence or particulars to support; ground (14) is simply not true as the screening included BOR 2 risk; ground (15) was not raised before the Board and finally ground (16) fails in light of Re Ahmed Syed Rafiq.
20. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.
Dated the 9th day of June 2020
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(Mike Mak) |
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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: |
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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 9/6/2020
Sufyan Muhammad
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 9/6/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10070/18/1/343/P1943
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3277/17(formerly RBCZ 12740/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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