Haider Syed Ghias v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1165/2019 on BabelCite. This High Court CFI judgment was delivered on 17 October 2023.
1. The applicant applies for leave to apply for judicial review of the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
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HCAL 1165/2019 [2023] HKCFI 2549 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1165 of 2019
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. THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). 2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed to take place on 20 March 2023. However, the applicant was absent without prior notice to the Court. His application is therefore dealt with on paper. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant 4.The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 September 2009 and was arrested by the police on the same day for illegal remaining. On 24 September 2009, he raised a torture claim, which was taken as a non-refoulement claim and assessed on all applicable grounds after the commencement of the unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by some Sipah-e-Sahaba (“SSP”) members. 5.The applicant claimed that he belonged to Shia sect. As a Shia Muslim, he used to practice his prayer and join the religious rallies. On many occasions, he was approached by SSP members to join them. They threatened to kill him if he refused. One day in early 2009, while attending a rally, the applicant involved in a conflict with the SPP members, during which he assaulted one of the members. Later, the applicant learnt from his father that the SSP members visited his house to look for him. A few days later, the applicant returned home from Kharian to attend a religious gathering. Yet, there was an unsuccessful attempt of attack from the SSP members. A week later, the applicant’s friend asked him to attend a gathering in Gujrat. On his way home from Gujrat, the applicant’s van was stopped by some SSP members who were holding guns. He did not stop and heard gunshots from behind. As his complaint to the police was of no avail, the applicant decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 24 May 2017 by the Director (the “Director’s Decision”). The Director’s Decision 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the applicant’s fear of harm was unlikely to be materialized [13]; (ii) state protection would be available to him [14]-[20]; and (iii) internal relocation was a viable option [21]-[24]. The Board’s Decision 8.The applicant appealed the Director’s Decision to the Board. On 17 September 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [48]. 9.The Board considered the applicant’s oral evidence. It found that his evidence on the general circumstances of his family was credible [52]. However, his evidence on the SSP was inconsistent with the country of origin information (“COI”) [53]. His evidence on the first incident and the SSP’s subsequent visits to his house was also changing [54]-[57]. Without any cogent explanations, the Board refused to accept that the applicant was targeted by the SSP [58]. Meanwhile, the Board found that the applicant’s alleged assault by the SSP was minor in scope and he sustained minor injuries, which were disproportionate to his perceived risk of harm [59]. As to the alleged police’s support of the SSP, the Board also rejected this assertion as it was speculative [60]-[61]. 10.Insofar as the alleged shooting on his way home from Gujrat was concerned, the Board found that his evidence on the incident was inconsistent and improbable [62]-[65]. Besides, the applicant’s evidence on the threats uttered to his family members was illogical [66]. Also, on his own evidence, his dispute with the SSP members was personal [68]-[70]. In these premises, the Board concluded that his claim was not credible. 11.In any event, the Board found that internal relocation was a viable option for the applicant [95]-[97]. Therefore, the Board rejected the applicant’s claim and dismissed his appeal. Application for leave to apply for judicial review of the Board’s Decision 12.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision. 13.In Form 86, the applicant set out his following grounds in support of this application.
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, §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:
17.The Board, for the reasons given, rejected his evidence in support of his claim as incredible. He has no factual basis in support of his claim. 18.As to his grounds in paragraph 13, supra, ground (1) is not applicable to the Board as there had been a lapse of time between the screening process and his appeal to the Board. Other grounds are his bare assertions without any evidence in support. They are not valid grounds to challenge the Board’s Decision. 19.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. 20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. CONCLUSION 21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. Dated the 17th day of October 2023
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
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Cases cited in this judgment