Re Kashif Muhammad

Judgment Cited authorities (3) Cited in (1) Precedent Map Related
CourtCourt of Appeal (Hong Kong)
Judgment Date12 January 2021
Neutral Citation[2021] HKCA 47
Judgment NumberCACV188/2020
Year2021
Copyright noteJudgment sourced from the Hong Kong Judiciary/Hong Kong Special Administrative Region Government.
Subject MatterCivil Appeal
CACV188/2020 RE KASHIF MUHAMMAD

CACV 188/2020

[2021] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2020

(ON APPEAL FROM HCAL NO 1400 OF 2018)

___________________________

RE: KASHIF MUHAMMAD Applicant

___________________________

Before: Hon Kwan VP, Toh and Lam JJ in Court

Date of Hearing: 5 January 2021

Date of Judgment: 12 January 2021

________________

J U D G M E N T

________________

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

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 3 June 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2. The applicant is a national of Pakistan. He is 31 years old. He came to Hong Kong illegally on 20 February 2016 and was arrested by the police on the same day. He lodged a non-refoulement claim on 22 February 2016 on the basis that he would be harmed or killed by two groups of men if he is repatriated to Pakistan as he had witnessed a murder resulting from a fight between them.

The Director’s decision

3. By a Notice of Decision dated 22 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4. The Director found that there is no reasonable likelihood that the risk of harm from the two groups of men is real and foreseeable. The Director also considered that there is no indication that any particular political or official powers in Pakistan had or would have adverse interest in the applicant. His problem with the two groups of men was localized in his residence and working location. The Director assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 6 June 2018. The Board did not accept that the applicant had witnessed a fight in which a person was fatally shot and did not accept that he was ever threatened or harmed by anyone linked to the asserted events because of the significant inconsistencies in his evidence. The Board was not satisfied that the applicant faces a real chance of harm of any kind in Pakistan for any reason and rejected the appeal on 9 July 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 16 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7. His grounds for his intended judicial review may be summarized as follows:

(1) The Director failed to appreciate the presence of state acquiescence;

(2) The Director failed to maintain high standard of fairness;

(3) The Director failed to take into account the failure of the state to provide reasonable protection to citizens but only gave weight to evidence according to his pre-conceived conclusion which was unfair to him;

(4) The Board had not made sufficient enquiries into the matter and failed to give sufficient chance for him to adduce relevant evidence.

The judge’s decision

8. The applicant appeared at the hearing on 20 December 2018. He confirmed before the judge that he did not have any complaint against the Director in relation to the process of interview and did not have any complaint against the Board. The judge held that the applicant has not set out any exceptional circumstances which entitled him to apply for judicial review of the Director’s decision. The judge considered that the applicant failed to identify the evidence he intended to adduce to the Board and the effect of having no such evidence. The judge also held that the rest...

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1 cases
  • Re Kashif Muhammad
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 5 May 2021
    ...time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Toh and G Lam JJ) handed down on 12 January 2021 ([2021] HKCA 47) rejecting the appeal against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial ......
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