Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Amin Muhammad

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date29 March 2021
Neutral Citation[2021] HKCA 416
Year2021
Judgement NumberCACV439/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV439/2020 RE AMIN MUHAMMAD

CACV 439/2020

[2021] HKCA 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 439 OF 2020

(ON APPEAL FROM HCAL 2156/2018)

________________________

RE: AMIN MUHAMMAD Applicant

________________________

Before: Hon Lam VP, Yau and S T Poon JJ in Court

Date of Hearing: 22 March 2021

Date of Judgment: 29 March 2021

________________________

J U D G M E N T

________________________


Hon Yau J (giving the Judgment of the Court):

Introduction

1. On 24 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 19 September 2017 rejecting the applicant’s non-refoulement claim.

2. On 7 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is a Pakistani national. He entered Hong Kong illegally on 17 October 2015. He was arrested by the police on 27 October 2015 and he lodged a non-refoulement claim on 29 October 2015.

4. The applicant’s claim was based on the fears that, if he returned to Pakistan, he would be harmed or even killed by a Muslim extremist Shia cleric named Tufail or Tufail’s followers for the reason that he had protested against them. He might also be harmed by those human traffickers who had trafficked him to Hong Kong to work for them as a slave. The factual background was succinctly summarized by the Judge at [1] – [3] of the Form CALL-1 ([2020] HKCFI 2062).

5. By notice of decision dated 19 September 2017, the Director, having assessed the applicant’s claim on all applicable grounds, rejected his claim. The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6. In addition, the Director also assessed and rejected the applicant’s claim under the prohibition of slavery, servitude and forced or compulsory labour in Article 4 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“BOR 4 risk”).

7. The applicant appealed to the Board against the Director’s decision. A hearing was held on 21 June 2018, during which the applicant was interviewed by the Board. The Board considered that the applicant’s evidence was vague, inconsistent and implausible. The Board thus found that the applicant’s claims were not credible and that there was no real risk of harm in the event of refoulement. As a result, the Board dismissed the applicant’s appeal on 3 September 2018 on all the applicable grounds as well as on BOR 4 risk.

Decision of the court below

8. On 8 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. No ground for review was set out. In his affirmation of the same date filed in support, he advanced a number of grounds for relief which were summarized by the Judge at [9] of his decision.

9. A hearing was held on 10 June 2020 at which the applicant appeared in person. On 24 August 2020, the Judge refused to grant leave to apply for judicial review. The grounds of relief of the applicant as well as the Judge’s reasons for the refusal were set out at [9] – [18] of the Form CALL-1 ([2020] HKCFI 2062, HCAL 2156/2018) as follows:

“9. On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance to enable him to have a better understanding of the contents of the decision of the Director or of the various documents in the hearing bundle for his appeal before the Board;

(3) wrongful exercise of case management power by the Director by using a biased formulaic approach in coming to the conclusion that state protection would be available to the Applicant as a result of improper assessment of the relevant COI;

(4) failure on the part of the Director and the Board to apply high standard of fairness in their consideration of his non-refoulement claim; and

(5) failure to read or translate the Board’s decision to the Applicant thereby depriving him of the opportunity of knowing the reasons behind the rejection of his claim and to make proper application for judicial review of that decision.

10. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12. As for his complaint under Ground (2) of not being provided with language assistance regarding the Director’s decision and other documents in his hearing bundle for his appeal before the Board, the fact is that he was still represented by DLS when the Director’s decision was delivered, while other documents in his hearing bundle such as his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue, and in the absence of any particulars...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT