Hussain Sayyed Rashid v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

CACV 200/2019

[2019] HKCA 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2019

(ON APPEAL FROM HCAL NO 1930 of 2018)

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Before: Hon Kwan VP and Toh J in Court

Date of Hearing: 13 August 2019

Date of Judgment: 19 August 2019

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JUDGMENT

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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 18 April 2019. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.The applicant is a national of Pakistan.  He was arrested by the police as an illegal immigrant on 15 June 2009.  He claimed that he had entered Hong Kong illegally by boat from China on that day.  He raised a torture claim by written representation on 18 June 2009 and completed a non‑refoulement claim form on 27 September 2014 with the assistance of Duty Lawyer Service.  His claim was based on his fear of being killed by Tansar Iftiaz and the Sipah‑e‑Sihaba (“SES”) if he were to be returned to Pakistan because of a land dispute with Tansar Iftiaz.

The Director’s decisions

3.By a Notice of Decision dated 31 July 2015, the Director rejected the applicant’s non‑refoulement claim on torture risk, BOR 3 risk and persecution risk.

4.The Director assessed that the level of risk of harm from Iftiaz and the SES upon the applicant’s return to Pakistan is not real and foreseeable as there is no indication that any actual bodily injury or intense physical or mental suffering had ever been inflicted upon the applicant by Iftiaz and/or his people in the past apart from the verbal threats from Iftiaz.  Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non‑refoulement application was rejected.

5.By a Notice of Further Decision dated 10 May 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non‑refoulement claim on all applicable grounds including right to life under article 2 of the Hong Kong Bill of Rights.

The Board’s decision

6.The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 22 June 2017.  The Board considered that the applicant was not giving a truthful, accurate or reliable account of his experiences in Pakistan.  A great deal of his case is based on hearsay evidence or speculation which is not supported by any other credible evidence.  Therefore, the Board did not accept that the applicant would be subjected to serious harm, even death, at the hands of Iftiaz or anyone acting on the instruction of Iftiaz if he is refouled to Pakistan. Thus, the appeal was rejected on 10 August 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 13 September 2018 to seek leave to apply for judicial review against the decisions of the Director and of the Board.  His grounds are stated in his affirmation which are summarized as follows:

(1) The absence of adequate amount of language assistance amounts to procedural unfairness.

(2) The fact that the applicant has never been informed of any decisions made on his claim amounts to procedural unfairness.

(3) The Director rejected the claim for the sake of rejecting all non‑refoulement claims and only adopted a very uninformed approach in concluding.

(4) It was wholly unfair, unreasonable and illogical for the Board to give no credence to all other aspects of the applicant’s claim except that he is a Pakistani.

(5) It was unreasonable and unfair that the Board rejected the claims without providing adequate reasons.

(6) The hearing bundle was provided by the Immigration Department which was never read to the applicant so he was unaware of the content of the bundle.

(7) There still remains a high risk and that his life is genuinely in danger should he return to Pakistan.

The judge’s decision

8.On 18 April 2019, the judge dismissed the application for leave to apply for judicial review for want of prosecution as the applicant was absent at the hearing of his application.

Grounds of appeal

9.The applicant stated in his notice of appeal that he did not receive any letter about his HCAL hearing so he was not aware of the hearing in court as his ground of appeal.

Analysis and disposition

10.The notice of hearing dated 22 February 2019 sent to the applicant by registered post, notifying him of the hearing date of his leave application, had been returned.  It is believed, therefore, that the applicant was not aware of the Court of First Instance hearing.  Thus, the applicant has a reasonable explanation for his absence at the hearing on 18 April 2019.

11.Under Order 32, rule 6 of the Rules of High Court (“RHC”), the court has the jurisdiction to set aside an order made ex parte.

12.We treat this appeal as an application to set aside the judge’s order of 18 April 2019 pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(1) RHC.  We set aside the judge’s order and remit the matter to him to conduct a hearing, on a date to be fixed, to consider the merits of the application for leave to apply for judicial review.  Necessary directions should be given by the Registrar of the High Court accordingly.

The applicant appeared in person.