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

CourtCourt of First Instance (Hong Kong)
Judgment Date03 June 2020
Neutral Citation[2020] HKCFI 1014
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL1400/2018
HCAL1400/2018 KASHIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1400/2018

[2020] HKCFI 1014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1400 of 2018

BETWEEN

Kashif 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 decision of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2. The applicant is a Pakistani national. He came to Hong Kong illegally 20 February 2016 and he was arrested by police the same day. On 21 February 2016, he was referred to the Immigration Department for investigation. On 22 February 2016, he made the non‑refoulement claim.

3. He claimed that if he was repatriated to Pakistan, he would be harmed or killed by two groups because he witnessed a murder resulting from a fight between these two groups. He was threatened by the defendant not to give evidence and was also threatened with harm or death by the victim’s family if he did not give evidence.

4. In his statement given to the Director and the Board, he said that he worked as a salesman in a garment shop. In 2015, after the shop had closed. He heard noises outside. He went out and saw a fight between two groups of men in the street. There were some 15 to 20 men at the scene. He saw one man being shot by another man. A few days later, around seven members of the deceased man’s family came to his shop and asked to be their witness. He agreed. Two hours later, the culprits of the murder came to the shop in a group of seven or eight and threatened to kill him if he gave evidence. He met the victim’s family on the street and told them that he would not stand as their witness. They were angry and hit him. They threatened to kill him if he refused to be their witness. A few days later, the culprits also went to his shop and made the same threat before. He was afraid and he quitted his job to come to Hong Kong.

The Director’s Decision

5. 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. 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”).

6. By Notice of Decision dated 22 August 2017 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.

The Board’s Decision

7. The applicant appealed to the Board and had appeared before the Adjudicator on 6 June 2018.

8. By Decision dated 9 July 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9. The Adjudicator had made quite extensive enquiries in relation to the incidents of his witnessing the murder incident and the events after the murder. The Adjudicator was not satisfied with his evidence. She found:

“16. … … However, having considered all the evidence before me I have cumulatively significant concerns regarding the truth of central aspects of the claims and evidence advanced.

17. … … When the evidence he has given is assessed in its totality, multiple significant anomalies are evident which lead me to conclude that central aspects of the Appellant’s circumstances are not as he has claimed.

33. … …. I am not satisfied that the Appellant fled Pakistan for any of the reasons claimed.

34. On the evidence before me, I do not accept that the Appellant faces a real chance of...

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1 cases
  • Re Kashif Muhammad
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 12 January 2021
    ...Lam) Vice President Judge of the Court of Judge of the Court of First Instance First Instance The applicant acting in person [1] [2020] HKCFI 1014 [2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap [3] This refers to the risk of being arbitrarily depriv......

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