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Ahmed Sattar v Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Judgment Cited authorities 17 Cited in 1 Precedent Map Related
Vincent
Judgment Date18 February 2021
Neutral Citation[2021] HKCA 171
Year2021
Judgement NumberCACV353/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV353/2020 AHMED SATTAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 353/2020

[2021] HKCA 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2020

(ON APPEAL FROM HCAL NO 504 OF 2018)

_____________________

BETWEEN
AHMED SATTAR Applicant
and
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE Putative Respondent

_____________________

Before: Hon Lam VP and Yuen JA in Court
Date of Hearing: 8 February 2021
Date of Judgment: 18 February 2021

___________________

J U D G M E N T

___________________

Hon Yuen JA (giving the Judgment of the Court):

Introduction

1. On 3 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 19 March 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 August 2017 rejecting the applicant’s non-refoulement claim.

2. On 11 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is a Pakistani national. He entered Hong Kong illegally on 19 April 2015 and surrendered himself to the Immigration Department on 4 June 2015. He was released on recognizance on 8 July 2015. The applicant lodged a non-refoulement claim on 19 October 2015.

4. The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his former girlfriend’s brothers who objected to their relationship. The factual background was succinctly summarized by the Judge in [2] – [10] of the Form CALL-1 ([2020] HKCFI 1677).

5. By notice of decision dated 16 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 16 January 2018, during which the applicant was interviewed by the Board. The Board found that there was a lack of credibility on the applicant’s part and that there was no real risk of harm. The Board was also satisfied that internal relocation was viable. Thus the Board dismissed the applicant’s appeal on 19 March 2018 on all the applicable grounds.

Decision of the court below

7. On 28 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. In his affirmation in support of his Form 86, he stated that his political party had started dialogue with his opposite party, he needed time to resolve his problem before returning to his country, and that he was still suffering from pain and was seeing a doctor in Hong Kong due to having been assaulted by the opposite party.

8. Upon consideration of documents only, on 3 August 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [17] – [21] of the Form CALL-1 ([2020] HKCFI 1677, HCAL 504/2018) as follows:

“17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18. In the Applicant’s case, the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in 51 – 68 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21. For these reasons I am...

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1 cases
  • Ahmed Sattar v Torture Claims Appeal Board / Non-refoulement Claims Petition Office
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 September 2021
    ...Hon Yuen JA (giving the Judgment of the Court): 1. This court (Hon Lam VP and Yuen JA) handed down judgment on 18 February 2021 ([2021] HKCA 171) (“the Judgment”) dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”) given on 3 August 2020 refusing to give the ......

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