Case Detail

MUHAMMAD ISHTIAQ v. DIRECTOR OF IMMIGRATION AND ANOTHER [Decision on Leave Application]

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[2024] HKCFI 3095-EN-2024-11-13

MUHAMMAD ISHTIAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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HCAL 1131/2017

[2024] HKCFI 3095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2017

BETWEEN
	Muhammad Ishtiaq	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	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:

consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

No order made for the Application.

Observations for the Applicant:

Introduction

1. This is the decision relating to what appears to be the Applicant’s application for assistance in the processing of his application for leave to apply for judicial review (“leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) in HCAL 1039/2022 and to re-open that leave application.

2. By way of background, there are two non-refoulement claimants by the name of Muhammad Ishtiaq at the time. They both came from Pakistan and are supporters of the Pakistan Tehreek-e-Insaf (the “PTI”). They both claim to be in fear of harm or death arising from a land dispute and their persecutors are influential people connected with the Pakistan Muslim League (Nawaz) political party (“PML(N)”).

3. One was born in 1980. He arrived in Hong Kong on 31 July 2015 and made a claim for protection. His alleged persecutor is Zeyarab Khan. He was given an identification number (“RBCL Number”) 2007/15 by the Immigration Department. He completed the two tier screening process. His claim was refused by the Director of Immigration (the “Director”) and his appeal against the Director’s decision was refused by the Board. He applied for leave to apply for judicial review of the Board’s decision under HCAL 1131/2017. His application was refused by the High Court. His appeal against that decision was dismissed by the Court of Appeal which also refused him leave to appeal to the Court of Final Appeal. He has exhausted all avenues of appeal or review. He is currently detained in Castle Peak Bay Immigration Centre (“CIC”), presumably pending removal. He is hereunder identified and referred to as “Claimant 1131”).

4. The second one was born in 1987. He claimed to have entered Hong Kong illegally on 1 November 2019. He made a claim for protection. His alleged persecutor is Safdar. He was given a RBCL number 1743/19 by the Immigration Department. He also completed the two tier screening process. His claim was refused by the Director and his appeal against the Director’s decision was refused by the Board. He also made a leave application in respect of the Board’s decision under HCAL 1039/2022. His leave application is pending. He was given recognizance, released from custody and resides in private premises. He is hereunder identified and referred to as “Claimant 1743”).

5. On 12 September 2024, this Court received a letter from the Applicant dated 9 September 2024 claiming to be Muhammad Ishtiaq with RBCL number 2007/15 who has been detained in Castle Peak Immigration Center “CIC” since 18 December 2023 and is the applicant in HCAL 1039/2022. Except for the RBCL number, that description matched the identity of Claimant 1743. He said he had complaints about his medical condition, the treatment in the hospital and the food in CIC. He complained that despite all that his case officer would not release him from CIC. He said he wants to know about his case, presumably meaning his leave application under HCAL 1039/2022. He sought the Court’s help. The Court has no power to grant him recognizance and order his release from detention. The best it could do is to expedite his leave application.

6. On 24 September 2024, the Court started processing his leave application and invited submissions from him. On the same day, the Court received a similar letter from the Applicant dated 23 September 2024 repeating his earlier requests.

7. By a letter dated 30 September 2024, the Applicant responded. This time, he claimed his RBCL number is 1743/19 and requested the Court to reopen his leave application under HCAL 1039/2022. With his newly claimed RBCL number and assertion that he is the applicant in HCAL 1039/2022, the description he gave of himself fully matched that of Claimant 1039. Hence, the Court scheduled an oral hearing of the leave application in HCAL 1039/2022. It became necessary for the Court to issue a body order to the CIC to bring the Applicant, whom the Court believed to be Claimant 1743, to court to attend the hearing. However, the CIC informed the Court that Claimant 1743 is not in their custody, while Claimant 2007 is. It therefore becomes obvious that the Applicant who has been communicating with the Court from the CIC is Claimant 1131 holding RBCL number 2007-15, whose leave application under HCAL 1131/2017 had been finally disposed of. The Applicant’s masquerade falls. The Applicant’s application by his letters and Claimant 1743’s leave application were then scheduled to be heard on 28 October 2024 separately.

The hearing

8. During the morning session of the hearing, the Applicant confirmed that he is the writer of the letters dated 9, 24 and 30 September 2024, that he is the person identified as RBCL 2007-15 and that he is the applicant of HCAL 1039/22. When he was referred to his letter dated 30 September 2024, he said he is also the person identified as RBCL 1743/19. He said he was given the RBCL numbers by the court’s correspondence. He later added that he was informed of the RBCL numbers by his lawyer. The Court then informed him that it had received two leave applications by two applicants bearing the same name as his and would have to first confirm his identity before proceeding with his application. The Court then stood down the hearing for him to prepare to answer questions from the Court about the facts of his non-refoulement claim for the purpose of ascertaining his identity. While the Applicant’s hearing was stood down, the Court dealt with the leave application under HCAL 1039/2022.

9. The hearing was resumed in the afternoon. Initially, the Applicant repeated under affirmation what he had told the Court earlier. However, after he was shown his supporting affirmation filed in HCAL 1131/2017 after the lunch time adjournment, he reversed his evidence. He admitted that the affirmation was filed by him, that he is the applicant in HCAL 1131/2017, that his leave application had been refused and that his application for leave to appeal that decision out of time had also been refused. He confirmed briefly the facts of his case for non-refoulement protection which he advanced before the Director, that his persecutor is his cousin Khan and he does not know Safdar who is his alleged persecutor mentioned in the decision sought to be reviewed under HCAL 1039/2022. With the background of this application as set out in Paragraphs 1 to 7 above and his admission during the afternoon session of the hearing, the Court is satisfied that the Applicant is not Claimant 1743, but is Claimant 1131 whose application for non-refoulement protection had run its full course and had been finally disposed of.

10. In view of the above, this Court has no jurisdiction to re-open his leave application in HCAL 1131/2017 or to compel the Director to release him on recognizance or to order the Hospital Authority to give him preferential medical treatment. Accordingly, the Court makes no order in relation to his application by letters dated 9, 24 and 30 September 2024.

Dated the 13^th day of November 2024

( Seline Sze )
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:
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)).		Sent to the Applicant on 13/11/2024 Muhammad Ishtiaq Applicant’s ref. no: Nil.		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 13/11/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8095/17/8/133/P1589 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1031/17 (Formerly RBCZ 12612/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

HCAL1131/2017

[2018] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2017

BETWEEN

	Muhammad Ishtiaq	Applicant
	and
	Director of Immigration	1^st Putative Respondent
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

consideration of the documents only;
consideration of the documents and oral submissions by the Applicant in open court;

Order byDeputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1. The Applicant is a Pakistan national. He is now aged 38 (DOB: 8 February 1980).

2. The Applicant claimed that he would be harmed or killed by his cousin Zeyarab Khan (“Khan”) due to a land dispute.

3. The Applicant said Khan had support of many influential people connected to the Pakistan Muslim League (Nawaz) [“PML(N)”]. Khan disliked him because he had not married Khan sister and also because he supported another political party, the Pakistan Tehreek-e-Insaf (“PTI”).

4. In 2014, Khan planned to build a house in front of the Applicant's house. The two had dispute which could not be settled by mediation.

5. One evening, the Applicant was assaulted by some men. Someone blamed him for starting all the disputes. The Applicant did not report the matter to the police. He thought he had no proof and also he had no money to bribe the police. He believed the police were influenced by PML(N) and would not help him.

6. A month later, the Applicant was assaulted by Khan and some men again. The Applicant did not report the matter to the police.

7. The Applicant’s father later filed a land dispute lawsuit against Khan and his family. Some months later, the Applicant met Khan. Khan asked the Applicant to tell his family to withdraw the lawsuit or he would kill the Applicant. The Applicant thought Khan targeted him because he had refused to marry Khan’s sister.

8. The Applicant’s family did not report the matter to the police but started to arrange for the Applicant to leave Pakistan for his safety.

9. The Applicant dodged Khan and left Pakistan on 27 July 2015. He came to Hong Kong on 31 July 2015 and surrendered to the police on the same day. He filed a non-refoulement claim on 2 August 2015.

10. The Applicant said the land dispute was not settled yet. He could not relocate himself to other parts of Pakistan because Khan could find him with the help of PML(N).

11. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

12. On 21 December 2017, the Applicant applied for judicial review.

Chronology of events

13. Things happened in this order: –

2015-7-27 The Applicant left Pakistan.
2015-7-31 The Applicant arrived in Hong Kong. He surrendered to the police.
2015-8-2 The Applicant filed a non-refoulement claim.
2017-7-13 The Director interviewed the Applicant.
2017-7-24 The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk)and (iv)life risk (BOR2 risk). [“the Director’s decision”]
2017-11-7 The Applicant appeared before the Board for appeal.
2017-12-1 The Board refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-12-21 The Applicant applied for leave for judicial review.

Respondents

14. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

15. In Form 86, the Applicant listed the Director and the Adjudicator as proposed respondents.

16. The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

17. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

18. In the present case, the Director's decision dated 24 July 2017 was more than three months old by the time the Applicant filed his current application on 21 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 1 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 21 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

19. In the Director’s decision dated 24 July 2017, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant’s allegations the officer considered the level of risk of harm against the Applicant by his alleged enemies was low. He was not satisfied the alleged enemies had real intention to seriously harm or kill the Applicant.

20. The officer was aware there were reports of police corruption in Pakistan. However, there were ongoing reforms in the country. There were official channels available for complaint against the misconduct of the police or government officials. The officer was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.

21. The officer did not find there was any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv)life risk (BOR2 risk).

TCAB/NCPO (the Board)

22. The Adjudicator found the Applicant’s assertions lacking in particulars. She did not consider the Applicant’s evidence credible or reliable.

23. On the other hand, the Adjudicator considered reasonable state protection was still available to the Applicant despite there were ineffectiveness and corruption in the Pakistan police. Reasonable internal relocation was also viable.

24. The Adjudicator did not find the Applicant faced any real torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). She refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

25. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence; failed to appreciate the corruption and incompetence of the administration in Pakistan; failed to appreciate the misconduct of the Pakistan police; failed to consider the absence of state protection; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; being unfair; rendered unreasonable decisions.

26. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.

Court hearing

27. In Form 86, the Applicant requested a hearing. The hearing took place on 31 May 2018. The Applicant was in person. An Urdu interpreter provided service in court.

28. The Applicant said he knew little English. A lawyer helped him to prepare Form 86 and the affirmation. He had nothing to add to the stated grounds of application.

29. In his complaint, the Applicant mentioned he had been in custody which limited his ability to adduce proof for his claim. He said in court that he was imprisoned between August 2016 and June 2017. Then he was remanded in the immigration detention centre until 8 January 2018. He said he therefore could not get hold of some documents from Pakistan to prove the alleged land dispute. He said those documents were generated in late 2014. They were with his brother and father when he left Pakistan in July 2015.

Discussion

30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

32. The Applicant complained he had limitation in adducing proof. He mentioned he had been in custody.

33. The Adjudicator was aware of the Applicant's situation. [7]

34. In court, the Applicant said the documents which he would like to get hold of for submission was related to the land dispute. Those documents were already with his brother and father when he left Pakistan in July 2015.

35. The Applicant's family made arrangements for the Applicant to leave Pakistan. He did not leave in a hurry. If the Applicant had wanted to use the alleged documents to support his non-refoulement claim, he would have brought a copy of them with him. Alternatively, the Applicant could have easily asked his family to send those documents to him in the almost one year before he was caught and imprisoned for illegal employment in August 2016. I am not satisfied the Applicant had really wanted to rely on the alleged documents or that he had been prejudiced in proving his claim to the Director or the Adjudicator.

36. The Applicant's other complaints were vague. He could not elaborate or be specific about them even though he was invited to do so in court.

37. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. There was no evidence that the Director and the Adjudicator were prejudiced and cherry-picked information. They had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director and the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

38. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

Dated 28^th day of June 2018

(Alan Ngan)
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 his solicitors must:

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)).

Sent to the Applicant on 28/6/2018

Muhammad Ishtiaq

Applicant’s ref. no:
Nil.

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 28/6/2018

Director of Immigration
1^st Putative Respondent’s ref. no.:
QA T/C 1031/17 (formerly RBCZ 12612/15)

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2^nd Putative Respondent’s ref. no.:
USM 8095/17/8/133/P1589

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] Order 53, rule 4 of the Rules of the High Court.

[6]Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] The Adjudicator’s Report, paras 15-16.

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

	consideration of the documents only;
	consideration of the documents and oral submissions by the Applicant in open court;

2015-7-27	The Applicant left Pakistan.
2015-7-31	The Applicant arrived in Hong Kong. He surrendered to the police.
2015-8-2	The Applicant filed a non-refoulement claim.
2017-7-13	The Director interviewed the Applicant.
2017-7-24	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk)and (iv)life risk (BOR2 risk). [“the Director’s decision”]
2017-11-7	The Applicant appeared before the Board for appeal.
2017-12-1	The Board refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-12-21	The Applicant applied for leave for judicial review.

	(Bruno Chan)
	Deputy High Court Judge