Case Document

100%Judiciary

HCAL 987/2021

[2021] HKCFI 2852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 987 of 2021

BETWEEN

	Shehzad Saeed	Applicant
	And
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	And
	Director of Immigration	Putative Interested Party

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 13 April 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.He is now being detained by the Immigration Department. He 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 citizen of Pakistan. He first came to Hong Kong in 2006 and he lodged a torture claim in March 2007. His application was rejected and a removal order was issued. He appealed to the Immigration Tribunal against the removal order. However, before his appeal was heard, on 22 March 2012, he withdrew his torture claim and was sent back to Pakistan on 11 May 2012. On 26 August 2020, he was arrested by police for illegal remaining. He submitted two letters dated 21 September 2020 and 7 October 2020 for subsequent claim.

5.As his torture claim appeal was not dealt with, the Director now deals with his subsequent claim as non-refoulement claim covering the 4 risks as described below.

6.He claimed that if refouled, he would be harmed or killed by his enemies, who are the Pakistan Peoples Party (“PPP”) members and supporters, due to his affiliation with the Pakistan Muslim League-Nawaz and him being the witness of Usman’s murder.

7.He and his friend were involved in a fight with the PPP people. In the course of the fight, a neighbour called Usman intervened and he was shot by the PPP people. He died shortly afterwards. The police investigated into the case and he stood as a witness. As a result, some of the PPP people were convicted and sentenced to jail for almost 4 years. Since the PPP people were incarcerated, he withdrew his torture claim and returned to Pakistan. Then the PPP people served their sentence and were discharged from prison. They called him on the telephone and threatened to kill him. He therefore fled Pakistan and returned to Hong Kong illegally. Details of his story are set out in paragraphs 9-15 of the Board’s Decision and paragraph 8 of the Director’s Decision described below.

The Director’s Decision

8.The Director considered his claim 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”).

9.By Notice of Decision dated 14 December 2020 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director did not accept that his enemies had the real intention of harming or killing him [16]; that state protection was available to him [17] and that internal relocation was an option open to him [18].

The Board’s Decision

10.The applicant appealed against the Director’s Decision. He appeared before the Board at the hearing.

11.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board further found that the applicant’s evidence was unreliable for the reasons that his evidence had major inconsistencies and his oral evidence contained material changes to his claim. He was unable to explain away those discrepancies and he had exaggerated or embellished his claims. See paragraph 18.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 13 July 2021 to apply for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision and it was dangerous for him to return to Pakistan.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

16.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.”

17.His grounds in support of this application do not assist his application. The Board was quite justified to reject his evidence after evaluation of his evidence.

18.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.

19.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 5^th day of October 2021

	(K.H. LI)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 05/10/2021 Shehzad Saeed Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 05/10/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17499/20/12/58/P3407 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 794/20 (Formerly RBCZ 10644/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)