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HCAL 1641/2021
[2024] HKCFI 480
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1641 of 2021
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Kousar Rubina |
1st Applicant |
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Arslan Muhammad |
2nd Applicant |
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Faizan Muhammad |
3rd Applicant |
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Irfan Komal |
4th Applicant |
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Nouman Muhammad |
5th 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 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:
1. The 2nd applicant’s application for leave to apply for Judicial Review be refused;
2. The 1st, 3rd and 4th applicants’ application for leave to apply for judicial review be dismissed; and
3. The 5th applicant’s application be adjourned to a date to be fixed pending the Official Solicitor acting as the next friend of the 5th applicant for his application.
Observations for the Applicant:
The procedural history
1. The 1st applicant is the mother and the 2nd to the 5th applicants are her children (“the children”). They are illegal immigrants by staying in Hong Kong without the permission of the Director of Immigration (“the Director”). They lodged non-refoulement claim jointly with the Immigration Department and the Director rejected their application. They appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, their appeals were dismissed.
2. The applicants filed Form 86 on 2 December 2021 for application for leave to apply for judicial review of the Board’s Decision.
3. By affirmation filed on 25 October 2023, the 3rd applicant, the 4th applicant and the 5th applicant, applied to withdraw their joint applications, saying that they want to go back to their country as soon as possible as their problems in their country have been solved.
4. The Court observed that the 1st applicant did not make an affirmation for her application for withdrawal. Nor did she make an affirmation as the guardian ad litem to withdraw for the 5th applicant, who is 15 years old, a minor.
5. The Court thus made enquiries with the applicants. The 2nd applicant informed the Court’s clerk that he will not be withdrawing his application and the 1st applicant, his mother, had passed away. His father is now being detained in jail for another criminal offence.
6. In order to clarify the issues, the Court called upon the applicants to appear before it. On 17 January 2024, all applicants except the 1st applicant appeared before the Court. A court interpreter also attended the proceeding to assist the applicants and the Court.
7. Before the Court, the applicants confirmed that the 1st applicant has passed away and all other applicants except the 2nd applicant applied to withdraw their applications.
The 1st, the 3rd and the 4th applicants’ applications
8. The 1st applicant’s application is dismissed for want of prosecution.
9. Insofar as the 3rd and the 4th applicants are concerned, they are of age and have the capacity to make their applications and there is nothing outstanding in their applications.
10. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:
“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
11. The 3rd and the 4th applicants’ applications are dismissed.
The 5th applicant’s application
12. Since the 5th applicant is a minor, he is unable to make his application under Order 80 of the Rules of the High Court (“RHC”). His application is adjourned to a date to be fixed for the Official Solicitor to take steps to make the application on his behalf.
The 2nd applicant’s application
13. The 2nd applicant proceeds with his application for leave to judicial review the Board’s Decision dated 10 September 2021 (“the Board’s Decision”), which dismissed his appeal against the Director’s Decision dated 27 March 2019 (“the Director’s Decision”) rejecting his refoulement claim application.
The Director’s Decision
14. The Director assessed the applicants’ applications on the facts of their cases.
15. In January 2018, the 2nd applicant was approved to enter Hong Kong to attend Asia’s Fashion Jewelry and Accessories Show, Hong Kong International Jewelry Show and to source fashion jewelry products and meet suppliers for business cooperation.. He arrived in Hong Kong on 2 March 2018 and was permitted to stay until 12 March 2018. He did not depart and overstayed since 13 March 2018. He surrendered to the Immigration Department on 28 March 2018, claiming that his passport was lost on 12 March 2018. On 9 April 2018, he first revealed that he wanted to lodge his non-refoulement claim. His claim is on the basis that if refouled, he and his family will be harmed or killed by (a) Mian Javed Lartif (“Mian”), Soukar Ali gondai (“Shoukat”) and his men due to a political dispute and (b) his brothers-in-law Imran and rizwan, due to family problem.
16. In the Director’s Decision, the Director had found contradictory statements and information provided by the family members, which affected the credibility of their evidence on the facts of their cases [16]-[22]. The Director therefore found that their enemies’ intention to severely harm and kill him and his family upon their return to Pakistan was considered to be extremely slim, if not impossible [23]. Also, the Director found that state protection is available [24]-[28] and internal relocation is a viable option open to him and his family [29]-[31].
17. The cause of fear of the family arose from the father of the family, who supported the Pakistan Tehreek-e-Insaf party (“PTT”) was recruited by members of the Pakistan Muslim League (N) party (“PMLN”) to join them, but the father refused. The father left the family to live elsewhere and the enemies had attempted various ways including attempting kidnapping the 5th applicant in order to get information on whereabouts of the father. Their enemies threatened the family with harm to the children. The family problem is the brothers-in-law kicked the family out of the family house where they had lived together for around 25 years. They reported this matter to police, but the police took no action.
18. The 2nd applicant appealed against the Director’s Decision to the Board.
The Board’s Decision
19. The Board held a hearing on 21 October 2020 and the applicants, including the 2nd applicant, attended. The 5th applicant was legally represented by a duty lawyer at the hearing.
20. Having considered the evidence, the Board, by the Board’s Decision, dismissed the 2nd applicant’s appeal for the reason that he was unable to establish that there will be real and genuine risk that he will be harmed or killed by his enemies if he returns to Pakistan with his family. Below are the Board’s findings:
“40. In the hearing, AP1 indicated that she will give evidence on behalf of the family, the other Aps would not give evidence on their claims….
53. … … since AP1 refused to relate more information or answer questions about Shoukat, I found her credibility was in doubt. Her evidence was not accepted by me. …
60. Having considered all the evidence of AP1, I am not satisfied that AP1 had established that the unknown people and Shoukat were acting in the official capacity as required in the definition of “torture”.
69. I had found that the Aps had never sustained a level of severe pain and suffering. From the evidence of AP1 as a whole, I find there were barely oral threats inflicting on the Aps. There unknown people had no intention to kill or to inflict seriously bodily harm to the Aps….
70. Having considered the evidence of AP1, I find that the Aps has [sic] failed to establish there are substantial grounds for believing that they would be in danger of being subjected to torture if they returned to India [sic]. Having considered the evidence as a whole I find there is no real chance for the Aps being subjected to torture if they return to India, even if there is, State protection is reasonable [sic] available to the Aps.”
21. Although there are topographical mistakes as to the country of origin, which should be Pakistan instead of India, these mistakes, in my view, do not affect the Board’s Decision as to render it to be arguable on such errors.
22. The 2nd applicant had filed Form 86 to apply for leave for judicial review of the Board’s Decision.
23. In his affirmation in support of his application, he simply said he disagrees with the Board’s Decision, without any specific ground.
Discussion
24. 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).
25. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 2nd applicant said he would not apply for withdrawal of his application at the moment. He said he may join his family at a later stage.
26. 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.”
27. The 2nd applicant has raised no valid ground to challenge the Board’s finding of the facts. The 2nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review. There is no reason that the Court should interfere with the Board’s finding of the facts.
28. The 2nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
29. Accordingly, I refuse to grant leave for the 2nd applicant to apply for judicial review of the Board’s Decision and I dismiss his application.
DISPOSAL
30. The Court shall make an Order in terms as follows:
(1) the applications of the 1st, 2nd, 3rd and 4th applicants’ applications be dismissed; and
(2) the 5th applicant’s application be adjourned to a date to be fixed pending the Official Solicitor acting as the next friend of the 5th applicant for his application.
Dated the 29th day of February 2024
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(M.O. WONG)(Ms)
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 Applicants:
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 Applicants
on 29/2/2024
Kousar Rubina,
Arslan Muhammad,
Faizan Muhammad,
Irfan Komal
and
Nouman Muhammad
Applicants’ 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 29/2/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15786-90/19/4/44-48/P3130-34
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 53-7/19 (formerly RBCZ 10014-8/19)[T1S130]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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