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

HCAL 2634/2018

[2021] HKCFI 1106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2634 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 14 November 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 illegally on 23 August 2015. He was arrested by police on 24 August 2015. He lodged non-refoulement claim with the Immigration Department on 27 August 2015.

5.He claimed that if refouled, he would be harmed or killed by Shah Israr Hussain (“Israr”) and his people due to (i) his involvement in the education of his nephew, the son of his brother Zia (“Zia”) and his wife, Shazia Bibi (“Shazia”), Israr’s sister; and (ii) his refusal to drop the court case against Israr. All the incidents happened between 2011 to 2015.

6.His family, including Zia is of Sunni Islam whereas Shazia’s family is of Shia Islam. Zia asked Shazia to convert to Sunni Islam. Shazia’s brother, Israr, disagreed and they had had quarrels over this matter. Zia prohibited Shazia to return to her home. In 2004, Zia had to join the army. He had to take care of Zia’s children and lived with his family. Israr asked the children to be educated in Shia Islam, but the applicant educated the children in Sunni Islam. Israr was unhappy about it. In 2011, a person called Khaokhar approached the applicant and asked him to tell Zia to allow Shazia to return to her family. Zia disagreed and he received threat phone calls from Israr. Thereafter, violence occurred. In 2012, he was assaulted and injured by people sent by Israr. He complained to police, which took no action. In 2012, his brother Rafaqat was assaulted by Israr’s people and was crippled. In 2013, Zia was shot dead by people sent by Israr. The applicant made a report to police and police made investigation. As a result, two people were arrested. Later, Israr was also involved and all were taken to court. Israr sent people to the applicant and asked the applicant to drop the court case. Israr agreed to pay compensation to him. He refused. In 2013, his family was attacked. Israr’s people went to his home with guns and AK47. One of them hit his father’s head with the butt of AK47. His father was injured and had to be admitted to hospital. He was perpetually harassed by Israr’s people, telling him to drop the court case of murder. He refused. However, he was concerned about his safety and in 2015, he left Pakistan for China, from where he came to Hong Kong. Details of the incidents are set out in paragraph 7 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 26 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that he would be subjected to any real risk of being harmed or killed if her returned to Pakistan [11]; that state protection was available to him [18] and internal relocation was an option open to him [19].

The Board’s Decision

9.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 4 September 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.

(1) The Board did not reject all his factual evidence. However, having considered the evidence, the Board came to the finding of the fact that his evidence at the hearing was inconsistent with his statement given to the immigration officer with legal advice from his duty lawyer [30]; that the Board was not satisfied that he faced a real chance of any harm in Pakistan for any of the reasons he has claimed [54]; that the Board did not believe that Shazia’s family had made threats and taken adverse action against Zia and his family to the extent of killing Zia [55] and that it was not satisfied that the applicant faced a real chance of harm of any kind for any reason in Pakistan in the reasonably foreseeable future [56].

(2) The Board did not accept that the applicant’s claim was substantiated on the basis of Torture risk [64], BOR 3 risk [69], BOR 2 risk [72] or Persecution risk [76].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 22 November 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 his life is still in danger in his country.

DISCUSSION

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

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 ground in support of this application does 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 28^th day of April 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