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HCAL 1291/2019
[2024] HKCFI 753
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1291 of 2019
BETWEEN
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Jahangeer 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. The applicant applies for leave to apply for judicial review of the Director’s decision dated 25 June 2019 (“the Director’s Decision”) and the Board, Decision dated 30 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Since he had appealed the Director’s Decision to the Board, his application for leave to apply for judicial review of the Director’s Decision has to be dismissed in limine.[1]
2. The applicant asked for a hearing. He appeared before the Court on 22 April 2019 and asked the Court to adjourn the hearing for him to instruct his private lawyer. At his request, the case was adjourned to 19 June 2024 and he appeared before the Court on this date.
3. Before the Court on 19 June 2024, he said that he could not afford a counsel to appear before the Court. He agreed that the matter should proceed accordingly.
4. 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 date of the Director’s Decision is 25 June 2018 and the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
5. The applicant is a national of Pakistan. Records from the Immigration Department revealed he was previously repatriated to Pakistan on 8 June 2012 upon his arrested by the police on 17 November 2006 for illegal remaining in Hong Kong. On 21 May 2013, he was again arrested by the police for the same offense and he admitted he illegally entered via Mainland China on the same date. He lodged a non-refoulement claim on 13 June 2013 on the basis that he would be harmed or killed by Shia members as he was a member of an opposing sect (ie Sunnis) if he is refouled to Pakistan. The applicant previously made a torture claim on 9 January 2007 but it was subsequently withdrawn on 15 May 2012. In the circumstances, the Director assessed his non-refoulement claim on all applicable grounds, including Torture risk[2].
6. In brevity, the applicant had been a follower of the Islamic faith under the Sunni Sect since he was born. However, the Sunnis were a minority sect whilst the Shias were the majority, and discord often occurred between the two groups. In around 1995, there was a physical altercation between Sunnis and Shias and both the applicant and his father were injured. He was hospitalized and eventually recovered but his father was not so fortunate; he sustained heavy injuries and passed away five days later. Whilst the police made several arrest of Shia members thereafter, they were released shortly. The applicant believed this was due to their power as the majority in Pakistan. In fear of the Shias, he stayed with his maternal uncle within Mian Chunnoo until 2001 and further relocated to Lahore in 2006. He eventually entered Hong Kong illegally in 2006 and as mentioned above, he was repatriated in 2012. When he returned to Pakistan, he was attacked by Shias while riding a motorcycle. He did not require hospitalization and reported the matter to the police, but they did not take any further action. Fearing for his safety, he made arrangements to enter Hong Kong again. Details of his claim are set out at [8] at the Notice of Decision dated 25 June 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
7. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) he had fabricated evidence to build up his claim [17]; (ii) Sunnis were in fact the majority religion with population, contrary to his claim being the minority [19]; (iii) whilst there were shortcomings by the Pakistani government to tackle social problems between the two religious groups, adequate state protection is still available [20] – [26]; and (iv) internal relocation was a viable option [27] – [34].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 20 February 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence and was legally represented via the Duty Lawyer Service.
10. The Board recapitulated the particulars of the applicant’s claim [31] – [49]. Having considered all the evidence, the Board rejected nearly every aspect of his claim and took the view he had embellished portions of his claim due to numerous inconsistencies in his evidence to the Director and before the Board [53] – [76]. Significantly, the Board, for the reasons given, rejected his evidence that his father was attacked by the Shia people and died [54] – [55]; that he was pursued by the Shia people [57] & [68]; that the Shia people were still looking for him once he left his home area in 1996 [58]; that he was falsely accused of murdering Iftikhar and a First Investigation Report was registered against him [60]; that generally, his evidence in support of his claim was unconvincing and contradictory [70] – [75]. In light of its findings, the Board concluded the applicant did not face a real risk under any of the proscribed forms of harm if he is refouled to Pakistan [77].
11. For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 14 May 2019 for leave to apply for judicial review of the Board’s Decision. I shall take the complaints against the Director as the complaints against the Board.
13. The applicant has raised the grounds in support of his application.
(1) There was no consideration on state acquiescence.
(2) The Board had failed to appreciate that the applicant is an asylum seeker and he is being detained by the Immigration Department. Therefore, he has limited means to obtain evidence for his application.
(3) The applicant was tortured by the state law enforcement agencies and the state should be liable.
(4) The Board had failed to consider the applicant’s argument.
(5) The Director had formed pre-conceived conclusion in relying on the country of origin information (“COI”).
(6) Corruption and incompetency of the administration of his country is very serious.
(7) The Director has failed to attain the high standards of fairness.
DISCUSSION
14. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not consider that the Board was wrong.
16. 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.”
17. The Board had, for the reasons given in paragraph 10, rejected his evidence on the material aspects of his claim and found that he was not subjected to real harm if he returns to Pakistan. The grounds raised by the applicant in paragraph 13 do not assist his application. They are bare allegations without evidence in support[3], bearing in mind that he was legally represented before the Board. There is no valid reason for this Court to interfere with the Board’s finding of the facts.
18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 25th day of July 2024
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(M.O. WONG)(Ms) |
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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 25/7/2024
Jahangeer 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 25/7/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12404/18/7/154/P2404
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1417/18 (formerly RBCZ 2000657/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalter JA, 2 August 2018
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
[2] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
[3]. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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