Case Detail

HCAL 942/2019

[2022] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 942 OF 2019

_____________

RE:

Muhammad Aslam

Applicant

_____________

Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 28 July 2022

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D E C I S I O N

_______________

1. The applicant is an illegal immigrant for remaining in Hong Kong without permission. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

2. The applicant filed Form 86 for application for leave to apply for judicial review of the Board’s Decision.

3. By Form CALL-1 dated 9 June 2022 (“the Court’s decision”), the Court dismissed his application. The deadline for him to file notice of appeal for appeal is 14 days after the Court’s decision.[1]

4. The applicant filed a summons on 4 July 2022 together with his affirmation in support of his application for extension of time to file the notice of appeal.

5. In his affirmation, he said there was no oral hearing for his application.

Discussion

6. Pursuant to Order 32, rule 11 and 11A of the RHC[2], having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the case.

8. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].”

9. The applicant claimed that, if refouled, he would be harmed or killed by members of the Sunni sect in Pakistan.

10. The Director refused his claim for the reason that his claim was not substantiated. He appealed to the Board.

11. Having considered the applicant’s evidence, the Board found that he was not a witness of truth [45]. The Board observed that the applicant was vague and unpersuasive on the evidence in relation to why he changed his religion [46]. It also noticed that the applicant demonstrated little knowledge about the difference between Shia and Sunni sects [47]. It cast doubt as to whether the applicant in fact practiced Shia faith [48]. Meanwhile, the Board found that the applicant provided inconsistent accounts [49]. As a result, the Board was not persuaded that the applicant was assaulted because of his conversion or that his house was burnt [50]-[57]. The references refer to the Board’s Decision.

12. The applicant did not request an oral hearing for his application. Pursuant to Order 53, rule 3(3) of the RHC[3]. His application was dealt with on paper. There is no valid reason to challenge the Board’s Decision. Nor has he raised any valid reason to show that this Court is in error.

13. There is therefore no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

14. I refuse to extend time for him to file the notice of appeal. Accordingly, the application is dismissed.

(K. W. Lung)
Deputy High Court Judge

The applicant was unrepresented.

[1] Delay in applying for relief (O. 53, r. 4)

(1) 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. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

[2] 11. Jurisdiction of the Registrar and masters (O. 32, r. 11)

(1) The Registrar and any master shall have power to transact all such business and exercise all such authority and jurisdiction as under any Ordinance or by these rules may be transacted and exercised by a judge in chambers except in respect of the following matters and proceedings, that is to say…”

11A. Interlocutory applications (O. 32, r. 11A)

A master may—

(a) determine an interlocutory application without an oral hearing; or
(b) adjourn the application to be heard before him or another master or a judge in chambers.

[3] 3.Grant of leave to apply for judicial review (O. 53, r. 3)

(3) The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant. (L.N. 152 of 2008)

HCAL 942/2019

[2022] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 942 of 2019

BETWEEN
	Muhammad Aslam	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	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 documents only; or
consideration of documents and Applicant being absent in open court;

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 Decision dated 14 November 2018 (“the Director’s Decision”), which has been dealt with by the decision dated 26 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review.[1]

2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4. The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 August 2015 and surrendered to the Immigration Department on 22 October 2015. On 30 December 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Sunni sect in Pakistan.

5. According to the applicant, he was born into a Sunni Muslim family. In 2014, he converted to Shia Muslim. Six weeks later, he received verbal death threats from two Sunni Muslims who were also members of National Assembly for his refusal to convert back to Sunni Muslim. One month later after the verbal threats, the applicant was assaulted by around 30 people who demanded him to convert back to Sunni Muslim. His house was later set on fire. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at 6.1 - 6.27 under paragraph 11 of the Director’s Decision and paragraphs 29 to 41 of the Board’s Decision.

The Director’s Decision

6. 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”).

7. The applicant was invited to attend the scheduled screening interview. However, through his duty lawyer, the applicant informed the Director that he was unwell. He answered the list of questions and thus the Director proceeded to determine his claim on the available information. By way of the Director’s Decision, the Director dismissed his claim on the basis that he would not face any real risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]; (ii) state protection would be available to him [19] and (iii) internal relocation was a viable alternative [20].

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9. Having considered the applicant’s evidence, the Board found that he was not a witness of truth [45]. The Board observed that the applicant was vague and unpersuasive on the evidence in relation to why he changed his religion [46]. It also noticed that the applicant demonstrated little knowledge about the difference between Shia and Sunni sects [47]. It cast doubt as to whether the applicant in fact practiced Shia faith [48]. Meanwhile, the Board found that the applicant provided inconsistent accounts [49]. As a result, the Board was not persuaded that the applicant was assaulted because of his conversion or that his house was burnt [50]-[57].

10. On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, the applicant enclosed documents including the hearing bundle. In one of the documents, the applicant said the adjudicator failed to make sufficient enquiry before the determination.

DISCUSSION

13. 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).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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 applicant has not been able to raise valid ground to challenge the Board’s Decision. The ground in paragraph 12 above is only his bare allegation without any substance or evidence to support it.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 9^th day of June 2022

(Chung Lai Fan, Christine)
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 9 June 2022 Muhammad Aslam 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 9 June 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 14575/18/11/418/P2905 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4271/18 (Formerly RBCZ 10339/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Re: Moshsin Ali[2018] HKCA 549

“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.”

RE MUHAMMAD ASLAM

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