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

HCAL 1930/2018

[2020] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1930 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by adding the Board as the respondent and by deleting the Immigration Department and replacing with the Director of Immigration (“the Director”) as the interested party.

The applicant

3.The applicant is a Pakistani national. He had come to Hong Kong 15 June 2009 illegally and was arrested by police on the same day. He was referred to the Immigration Department on 17 June 2009.

4.He claimed that if refouled, he would be harmed or killed by Tansar Iftiaz (“TI”) and the Sipah-e-Sihaba (“SES”).

5.The incidents leading to his leaving his country took place as set out below.

a.He was a supporter of the Shia branch of Islam and his family was the only Shia family in the village. His father was the organizer of the Shia conference on 24 April 2001.

b.On 23 April 2001, TI brought 30-35 people to his house. They warned his father not to convene the conference the next day. His father refused.

c.At about 6:30 p.m. on 24 April, whilst they were holding the conference, TI and the same group of people came. They fired shots at his home for about 2 hours.

d.At about 3:00 a.m. the same day, the family moved to Dilawar Cheema provided by a friend where they stayed. He was told by a friend that their family house had been destroyed by TI.

e.Later, his brother told him that his father was abducted by the TI people. His brother managed to escaped. On the same day, the matter was reported to police. But the police took no action.

f.  In early 2002, his father was released. He had been beaten up by TI’s men and was injured seriously. His father had to be hospitalized. However, between 2001 and 2007, nothing untoward happened to his family. In December 2007, the TI people shot at his car when he was on his way to his cousin’s wedding. The family had escaped.

g.In 2008, the TI people went to his house monthly. One day in 2008, his younger brother was hit by a car driven by the TI people.

h.He went to Karachi where he stayed for 45 days, then he moved around other places. In December 2008, he had an agent to arrange for him to come to Hong Kong. On 2 June 2009, he left Pakistan for Hong Kong.

i.   His wife told him that her niece aged 8-10 was kidnapped by SES. They wanted him to exchange for the girl. Later, the girl was killed.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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.risk of persecution by 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”).

7.By Notice of Decision dated 31 July 2015 and Notice of Further Decision dated 10 May 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be in danger of being harmed by TI and SES upon his return to Pakistan [14]; state protection [19] and relocation [20] were available to him.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 22 June 2017.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s evidence and was of the view that the applicant’s evidence was vague and generalized, inventing and exaggerating and it was unable to attach any weight to his evidence in general. See paragraph 82 to 91 of the Board’s Decision.

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 13 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.He relied upon the grounds below in support of his application.

1.He was not provided with legal advice or language assistance for his appeal and for this application.

2.The Board failed to attain high standards of fairness and give adequate reasons for its decision and it was wholly unfair, unreasonable and illogical for the Board to disbelieve his evidence other than that he is a Pakistani.

3.The Board was irrational, unreasonable and unfair to reject his evidence. For example, it was unreasonable for it to reject his evidence that TI had killed more than 100 people inside and outside his home village, ie paragraph 75 of the Board’s Decision. The Board did not explain the reason or only provided inadequate reasons.

4.It is unreasonable for the Board to reject his evidence of his personal experience of him being shot, reference made to paragraphs 75-89 of the Board’s Decision. The Board failed to give any proper explanation.

5.The hearing bundle was given to him shortly before the appeal hearing without translation.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer explained the Director’s Decision to him and his friend explained the Board’s Decision to him.

14.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

15.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.Ground (1) fails in light of the above authorities. Ground (2) to Ground (4) complain lack of explanation for disbelieving his evidence. The Board had given its reasons in its decision. Paragraph 75 states that the evidence was inherently incredible and the evidence was hearsay evidence. For other reasons, see paragraphs 82-91. Ground (5) is inconsistent with what he said in court.

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 16^th day of July 2020

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1