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HCAL 1755/2018
[2021] HKCFI 52
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1755 OF 2018
BETWEEN
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Ashraf 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 C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1980, is a national of Pakistan. According to record of the Immigration Department, he was arrested by the police on 16 April 2008 in an anti-illegal employment operation. He was discovered to have overstayed after he arrived in Hong Kong on 20 May 2001 as a visitor. He was convicted of overstaying and taking up unapproved employment and sentenced to 6 months and 6 weeks’ imprisonment. On 23 September 2008 he applied for torture claim but he withdrew his claim in October 2009. Subsequently he was returned to Pakistan. On 15 February 2016 he surrendered to the Immigration Department and claimed that he sneaked into Hong Kong on 25 December 2015 by boat illegally. He then lodged his non-refoulement claim.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [22(4) - (33)] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by 3 men (Faisal, Dildar and Ahmad) in his home village as he had provided information to the local police which caused their arrests. He claimed that he gave information of their whereabouts to the police in 2001. One evening in March 2001, Dilhar and Ahmad, after they had been released from jail, attacked him with a knife saying that they would not spare him as he gave information to the police. The applicant did not report the incident to the police. In fear of his safety, he came to Hong Kong in May 2001. In November 2009, he returned to Pakistan. In early 2010, he was woken up by gunshots and later found bullet holes on the external wall of his house. He did not report the incident to the police, though he believed it was masterminded by the three men he informed the police. He then fled to work as a taxi driver in Lahore and later to Oman in January 2012. He returned to Pakistan in around September 2012. Then he went to Oman again in October 2012 until he returned to Pakistan in around March 2013 to live in Gujranwala city. When he learned from his mother that his enemies were still looking for him threatening to kill him, he left Pakistan for Mainland China and lived there for around two years before he sneaked into Hong Kong by boat in late 2015.
The Director’s decision
4. By a notice of decision dated 15 May 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. He found that state protection is available to the applicant and internal relocation is a viable option for him. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
5. The applicant attended a hearing before the Board on 12 April 2018.
6. By a decision dated 16 August 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [26-54] of its decision. In a nutshell, the reasons can be summarized as follows:
(1) the Board found the applicant’s story not a credible one for the obvious reason that if his fear was so real and so great, he would clearly not keep going back to Pakistan like what he did. Moreover, his story was mostly based on hearsay; the gunshots incident in the middle of the night is also a story that is very hard to believe [26];
(2) the Board also found the applicant not a credible witness because of numerous important inconsistencies between his non-refoulement claim form and his evidence in his interview [27];
(3) there was no reliable evidence that the applicant had suffered physical and or mental suffering of the requisite severity [28 iv];
(4) he had never informed the police or any other authority in Pakistan that his enemies had attacked him [28 v];
(5) in any event, state protection is available and internal relocation is a viable option for the applicant [35,54].
8. Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.
Application for leave to apply for judicial review
9. The applicant filed a Form 86 on 27 August 2018 for leave to apply for judicial review of the decision of the Board. He applied to withdraw his application by affirmation dated 31 January 2019 and leave was granted to him by Deputy High Court Judge Lung on 7 March 2019. However, the applicant applied by letter dated 18 November 2019 to “re-open” his judicial review application. Deputy Judge Lung granted his application and the case was “restored” on 26 November 2019. A hearing was scheduled for the applicant on 19 February 2020 which was later refixed to 28 April 2020 due to public health concern arising from the COVID-19 pandemic. The second hearing was again cancelled for the same reason.
10. The applicant filed a summons date 5 October 2020 only stating that “I do not want to return home so I want to apply to the High Court.” In his affirmation in support, he further stated that “affirmation to extended my time to appeal as my aply to the High Court as I do not want to return my country.” (sic)
11. The application in the summons, apparently for extension of time to appeal, is misconceived as his application for leave for judicial review has been restored and not yet been refused. There is no decision for him to appeal.
12. An oral hearing was scheduled for the applicant on 26 November 2020. A notice of hearing was sent to him by post at the address he provided in his summons. He was absent from the hearing which is treated as his waiving the right for an oral hearing and making his oral submission. I will proceed to consider his summons and his application for leave for judicial review on the papers.
13. In the Form 86, the applicant did not set out any grounds for the relief sought. In the affirmation in support dated 27 August 2018, he only said “They (the Board) disregard my dangerous situation.”
14. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. On the factual findings, there would be no factual basis in support of any of the applicable grounds.
15. Having considered all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.
16. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The only complaint raised in his affirmation was that the Board disregarded his dangerous situation. This is only a bare assertion without particulars and evidence in support. There is no merit in it. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately. I entirely agree with the findings of the Board.
18. Even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm. It came nowhere near the level of severity required by law to constitute torture or CIDTP. The fact that he repeatedly returned to his country in the past was inconsistent with someone in genuine fear for his life and safety.
19. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
20. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.
21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.
22. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.
23. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
Disposition
24. Accordingly, leave to apply for judicial review is refused. His summons dated 5 October 2020 is also dismissed.
Dated 12 January 2021
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(Chung Lai Fan, Christine) |
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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 12 January 2021
Ashraf Muhammad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putati ve Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7230/17/5/236/P1451
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 558/17 (Formerly RBCZ 12467/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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