Re Zumurd Hussain

CACV 125/2018

[2018] HKCA 480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2018

(ON APPEAL FROM HCAL 264/2017)

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JUDGMENT

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of D’Almada Remedios J on 25 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong illegally in about May 2007. He was arrested on 14 May 2007. On 28 May 2007, he made a non-refoulement torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”). His claim is based on the threat from a group of Sunni Muslims who were hostile towards the applicant, a Shia Muslim. His torture claim was rejected by the Director on 27 September 2013 and he did not appeal against this decision. However, on 16 September 2014 he raised a non-refoulement claim under the Unified Screening Mechanism.

2.The Director decided against the claim on 9 April 2015.  The decision covered BOR 3 risk and persecution risk (the Director’s decision on the CAT claim was not re-opened) (“Director Decision”). On 21 April 2015, the applicant appealed to the Torture Claims Appeal Board.

3.By a Further Decision of 26 April 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4.The Board dismissed the applicant’s appeal on 27 April 2017 (“Board Decision”).

5.The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 2 June 2017 did not contain any ground for judicial review.

6.In his affirmation dated 2 June 2017, the applicant gave the following grounds for judicial review:

“ I strongly disagree and not accept the decision made by Non-refoulement Claims Petition Office.

Please further review my case as my situation in Pakistan is extremely dangerous and I must die when I back to Pakistan.

Also, my last screening interview is not yet completed. It is unfairfor me and it is needed to review my case again with complete story.

Moreover, I have already married in Hong Kong.  I would like to have a better future with my wife in Hong Kong.”

7.The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [29] to [44] of the CALL-1 Form of 25 April 2018:

“29. The central issue here is if the Applicant was given every reasonable opportunity to establish his claim before the Director and the Adjudicator.

30. The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB. He has been afforded reconsideration of the matter as a result of this. It follows that judicial review of the decision of the Director is not an option open to him.

31. For the sake of completeness, having perused the Director’s decision carefully, I cannot find it reasonably arguable that the Applicant was not given an opportunity to put forward his ‘whole story’. In fact he was given ample opportunity to do so and did.

32. The Applicant was given numerous opportunities to attend screening interviews, he repeatedly failed to do so on the scheduledappointment times on all but one occasion. The one interview thathe did attend, was cancelled as the Applicant expressed that he was not feeling well and did not wish to continue. During this time, the Applicant was legally represented by an assigned Duty Lawyer.

33. The Director provided a detailed record of these numerous interview dates, the circumstances and the correspondence surrounding each instance in his decision. There is no need to repeat them here.

34. Needless to say, the Director gave every opportunity to the Applicant, however on each occasion the Applicant did not provide reasonable explanations for his failure to attend the scheduled interviews. As provided under the Immigration Ordinance Cap 115, the Director may take into account, as damaging the claimant’s credibility on the failure, without reasonable excuse to attend a scheduled interview and proceed with a determination of the claim based on all available information.

35. Additionally, via a letter dated 3 April 2017, the Applicant was invited to submit further facts in support BOR 2 risk. Again, the Applicant requested for the delay in the deadline for submissionof additional facts which the Director duly accommodated. Finally, however via a letter from the duty lawyer dated 21 April 2017, the Applicant, confirmed, there were no additional facts to submit.

36. The Applicant was given ample opportunity to attend a scheduled interview and present his ‘whole story’ in support of his claim. He did not do so. There are no merits to the grounds advanced against the Directors decision.

37. Turning to the Adjudicator’s decision. The Adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing. He was again legally represented by an assigned Duty Lawyer. The Applicant testified at the hearing. This provided the Applicant with a further opportunity to advance his claim.

38. The Adjudicator considered all applicable grounds for non-refoulement protection, including torture risk, BOR 3 risk, BOR 2 risk and persecution risk. He correctly set out the applicable law and key legal principles for the above grounds and risks in his decision. He considered the Applicant’s claim. The Adjudicator concluded that the claim failed under all of the headings as they did not establish a substantial risk of BOR2, BOR3 or persecution. Further, the Applicant’s claim failed independently on credibility. The reasons were stated in his decision. In short, he found the Applicant was not honest, reliable or genuine giving reasons why he came to that decision.

39. The argument that the Applicant did not have a fair hearing and did not have the chance to give his complete story is unmeritorious. The Applicant was afforded opportunities to put forward his claim in its entirety on numerous occasions in a process that has lasted some 10 years. None more so than in the lead up to the decision of the Director. It appears that the Applicant was using all efforts to prolong the proceedings.

40. The Director has been more than fair in his efforts to accommodate the Applicant and afford him a fair chance to advance his claim.

41. The Applicant has stated he wishes to put forward the ‘whole story’ regarding his claim. He was able to do so both before the Director and the Adjudicator.

42. The Adjudicator disbelieved the Applicant’s accounts. He found that the Applicant’s claim failed independently on credibility and set out detailed, cogent reasons as why he came to this conclusion. The Adjudicator was careful when assessing the Applicant’s credibility. He found the Applicant’s account to be dishonest and was satisfied that he was not a genuine claimant. The Adjudicator set out his reasons for rejecting the Applicant’s evidence. The Adjudicator confirmed the decision of the Director. The Adjudicator was entitled to make his findings against the Applicant. There is no basis to interfere with his finding on credibility.

43. Having considered the decisions of both the Director and the Adjudicator with rigorous examination and anxious scrutiny I do not find any error in law or procedural unfairness or any failure on their part to apply the high standards of fairness in their consideration and assessment of the Applicant’s claim. The decisions satisfied the enhanced Wednesbury test, it was not Wednesbury unreasonable.

44. I am satisfied that the Applicant’s claims are not reasonably arguable, there is no realistic prospect of success.  The applicant’s application for judicial review is therefore refused.”

8.In the notice of appeal of 2 May 2018, the applicant said it was not safe for him to go back to Pakistan.

9.The applicant agreed by a letter faxed to the court on 11 May 2018 that the appeal can be heard by two judges.

10.The applicant lodged skeleton submissions on 27 June 2018.  The skeleton contains arguments similar to those found in the applicant’s affirmation dated 2 June 2017.  He said that there was insufficient investigation because the “investigation report” only stated how safe the applicant’s country was.  It did not have any evidence to prove that threat to the applicant has already been “solved”.  The applicant also cited various Conventions and general legal principles but he did not explain how these can be applied to his claim. 

11.Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

12.In this appeal, the applicant did not seek to challenge the dismissal of all the grounds for judicial review by the learned judge.  His soleground of appeal is that it is not safe for him to return.  At §§10 and 11 of the Board’s Decision, the Board held that the injuries sustained by the applicant in the past did not meet the minimum level of severity.  Also, there was no evidence of torture.  The Board found the applicant to be not credible and he did not seek to overturn this finding.  The applicant is unable to show that the Board had committed any error in reaching this conclusion.  There is no merit in this ground of appeal.

13.In his skeleton submissions, the applicant argued that it is not safe for him to return because the threat to him has not been “solved”.  In light of the Board’s rejection of the applicant’s account, there is no evidence to support the existence of the alleged threat and we do not accept this argument.

14.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.

The applicant appeared in person