Case Detail

HCAL 947/2021

[2022] HKCFI 2362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 947 OF 2021

_____________

RE:

SHAHID MUHAMMAD

Applicant

_____________

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

Date of Decision: 16 August 2022

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D E C I S I O N

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The application

1. The applicant is an illegal immigrant by remaining in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Form CALL-1 dated 26 August 2021 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review. The deadline for his to file his notice of appeal is within 14 days after the Court’s decision[1].

4. The applicant filed a summons on 12 July 2022 for appeal against the Court’s decision out of time.

5. In his affirmation in support of his application, he said he could not take out the application for appeal on time.

Discussion

6. Pursuant to Order 32, rule 11 and 11A of the RHC, 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 the Shia people because he insisted on creating nuisance to them by enquiring them for the whereabouts of his father, whom he believed to have been kidnapped by them.

10. The Director found that his claim was not substantiated. He appealed to the Board. He did not appear before the Board on the hearing date on 23 July 2020. The Board wrote to him and demanded explanation for his absence. He did not provide the Board with any explanation. The Board proceeded to assess his appeal.

11. The adjudicator refused to accept the face value of his evidence without clarification. The burden being on him to prove his case, his absence had rendered impossible for the adjudicator to test his evidence, the adjudicator therefore found that he had not established any of the facts he had asserted. In the circumstances, there is no factual basis in support of his claim. See paragraphs 27-40 of the Board’s Decision. On this basis, the Board dismissed his appeal.

12. The applicant has no valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of this Court in the assessment of his application.

13. There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for his to appeal and I dismiss his application.

(K. W. Lung)
Deputy High Court Judge

The applicant was unrepresented.

[1] Order 53, rule 3(4) RHC

HCAL 947/2021

[2021] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 947 of 2021

BETWEEN

	Shahid Muhammad	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 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. This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 October 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2. He is now being detained by the Immigration Department. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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 citizen of Pakistan. He came to Hong Kong on 15 September 2002 as a visitor. He overstayed. On 24 February 2004, he was arrested by police and was repatriated to Pakistan on 17 March 2004. On 17 November 2006, he was arrested by police for illegal remaining in Hong Kong. On 23 July 2007, he lodged a torture claim but was rejected by the Director on 13 November 2013.

5. He claimed that if refouled, he would be harmed or killed by the Shia people because he insisted on creating nuisance to them by enquiring them for the whereabouts of his father, whom he believed to have been kidnapped by them. This incident arose out of the frequent disputes between members of the Sunni community and the Shia community. His father and himself belonged to the Sunni community. In 1990, his father was attacked and admitted to hospital. He then disappeared. He heard rumour that his father was taken away by the Shia community. Since 2002, he has made enquiry about his father. The Shia people attacked him because of him making enquiry about his father. Details of the story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

6. His torture claim had been rejected. The Director considered his application in relation to the following risks:

a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
b. 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
c. 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. By Notice of Decision dated 17 September 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk as alleged was not as real and imminent as the applicant claimed [16]; that state protection was available to him [24] and that internal relocation was an option open to him [25].

The Board’s Decision

8. The applicant appealed against the Director’s Decision. He did not appear before the Board on the hearing date on 23 July 2020. The Board wrote to him and demanded explanation for his absence. He did not provide the Board with any explanation. The Board proceeded to assess his appeal.

9. By the Board’s Decision, the Board rejected his appeal. The Board rejected the applicant’s evidence on the facts in support of his claim for the reason that because he failed to attend the hearing, the Board was unable to clarify his evidence, which the adjudicator found to be vague and superficial in the extreme and lack of detail, coupled with his inherently strange claim in the context of the situation in Pakistan and its religious demographics. The adjudicator refused to accept the face value of his evidence without clarification. The burden being on him to prove his case, his absence had rendered impossible for the adjudicator to test his evidence, the adjudicator therefore found that he had not established any of the facts he had asserted. In the circumstances, there is no factual basis in support of his claim. See paragraphs 27-40 of the Board’s Decision. On this basis, the Board dismissed his appeal.

Application for leave to apply for judicial review

10. The applicant filed Form 86 on 5 July 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11. In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision and it was dangerous for him to return to Pakistan.

DISCUSSION

12. 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, CA. §40 and Nupur Mst v Director of Immigration[2018] HKCA 524 §14 (1).

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

14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

15. His grounds in support of this application do not assist his application. The Board was quite justified to reject his evidence in light of the deficiencies in the value of his evidence without clarification and the strange nature of his case. The Board has, in fact, considered the merit of his case, which it found to have no merit at all.

16. 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.

17. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 26^th day of August 2021

	(K.H. LI)
	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

Notesfor 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 26/08/2021 Shahid Muhammad 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 26/08/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13661/18/10/3/P2698 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3392/18 (Formerly RBCZ 2001874/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

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

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Files (2)

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;