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Ishfaq Muhammad v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office And Another [Decision On Leave Application]

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 1005
Judgement NumberHCAL76/2019
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL76/2019 ISHFAQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL76/2019

[2020] HKCFI 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 76 of 2019

BETWEEN

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

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 oral submission by the Applicant 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 against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2. The applicant is a Pakistani national. He arrived in Hong Kong on 12 February 2016 having entered illegally by boat from China. He was arrested by police on 13 February 2016. On 17 February 2016, he lodged a non-refoulement claim in which he alleged that he would be at risk of harm if refouled back to Pakistan.

3. He claimed that if refouled, he would be harmed or even killed by his paternal uncle, Muhammad Iqbal (“Iqbal”) and his son and his men due to a land dispute. The land dispute arose because his grandfather owned a piece of 2-kanal land, which was transferred to his father and his uncle, Iqbal in equal shares. His father did not farm the land, but Iqbal did. After his father passed away, he would like to claim his father’s share of the land from Iqbal, who refused to give it to him. He had gone to Iqbal’s home and made the requests from time to time. Iqbal was sick of his visits. He and his people hit him with sticks and kicked him. Iqbal threatened to kill him if he dared to approach him for the land again. On one occasion, Iqbal took out a gun to threaten him. He fled. He did not go to see the doctor after he was beaten up. He knew that Iqbal was connected with the Pakistan Muslim League (Nawaz), a powerful party there. In order to avoid Iqbal, he had stayed in other places for a year and nothing happened. He was assisted by a friend and came to Hong Kong.

The Director’s Decision

4. The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. 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”);

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 under RC”).

5. By Notice of Decision dated 22 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

6. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 23 October 2018.

7. By Decision dated 31 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8. The Board considered the applicant’s evidence and found that:

a. there were inconsistencies and contradictions in his evidence, the nature of which was sufficiently serious as to undermine the reliability of his story that he feared his uncle, Iqbal [38(a)] and what his real problem was [38(b)];

b. there was no evidence that Iqbal was still looking for him [39(1)];

c. there was no evidence that Iqbal would expend effort to travel throughout the country to kill him [39(2)];

d. there was evidence that the state of Pakistan was unwilling to help him for a Convention reason and he had not sought protection at all [39(3)];

e. there was evidence that state was available to him [54];

f. there was no evidence to show that he had committed criminal offence, which would deprive him of his life by the government [58];

g. there was no evidence that he would be subjected to BOR 3 risk [63];

h. there was no evidence that he would be subjected to Torture risk as defined in s.37U of the Ordinance [70]; and

i. internal relocation was an option open to him [78].

Application for leave to apply for judicial review

9. In his Form 86 dated 9 January 2019 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

10. As explained below, his application for leave to apply for judicial review should be against the Board...

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