Shah Sabir Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1240/2018

[2021] HKCFI 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1240 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 13 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 18 May 2014 through Sri Lanka and China. He was arrested by police on the same day. He lodged his non-refoulement claim with the Immigration Department on 24 May 2014. Whilst on bail, he had committed some crimes for which he was sentenced to four months’ imprisonment.

5.He claimed that if refouled, he would be harmed or killed by the members of the Muttahida Qaumi Movement Group (the “MQM Group”) because he supported the Awami National Party (“ANP”). He worked at the Pakistan International Container Terminal as a clearing agent. The MQM Group members came along and asked for protection money from time to time. Around the end of 2013, he joined the ANP people to burn down the Unit 73 office of the MQM in Karachi as a revenge to their treatments to the local hawkers for protection money. The MQM Group retaliated by kidnapping him for ransom. He was detained and assaulted. His paternal cousin redeemed him for PKR150,000. He reported to the police station in Karachi. They took no action. Then, the MQM Group workers did not cooperate with him at work. He was nearly crashed by a 22-wheel truck at the work place. He had a narrow escape, but his motorbike was crashed. A few days later, he received verbal threats from the MQM people. On 14 May 2014, he left Pakistan for Hong Kong.

6.The details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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

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

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”).

8.By Notice of Decision dated 6 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that the level of risk of harm from the MQM Group upon his return to Pakistan was assessed to be low [12]; that state protection would be available to him [15] and that internal relocation alternatives were available to him and was reasonable [16]. On the reasons aforesaid, the Director turned down his claim on all the grounds in paragraph 7 above.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 28 May 2018.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

a.  The applicant refused to answer questions for clarifications of some inconsistencies of his evidence despite warning from the Board that his evidence that he was attacked might not be accepted. [29-31]

b.  He also refused to offer any explanation for apparent inconsistencies internally within his claims. [34]

c.  The Board would accept that he might have been subjected to incidents of crime and possibly extortion attempts in Karachi by MQM Group. It did not accept his claims as to the continuing power of MQM in Karachi and their ability to harm him wherever he might go in Pakistan. [39]

d.  The Board was not satisfied that he had established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment as claimed if he returned to Pakistan. [40]

e.  There is no evidence that police were involved with MQM Group. [41]

f.  For the reasons above, the Board rejected his claim on BOR 2 risk [44], BOR 3 risk [46], Torture risk [47] and Persecution risk [48].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he said that he was not satisfied with the Director’s and the Board’s decisions. He cannot go back as his life is still in danger.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

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

“13.… …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.”

15.His grounds in support of this application do not assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 1^st day of March 2021

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