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Re Haider Sufyan

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
Judgment Date10 January 2019
Neutral Citation[2019] HKCA 26
Year2019
Judgement NumberCACV447/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV447/2018 RE HAIDER SUFYAN

CACV 447/2018

[2019] HKCA 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2018

(ON APPEAL FROM HCAL 122/2018)

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RE: HAIDER SUFYAN Applicant

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Before: Hon Lam VP and B Chu J in Court

Date of Hearing: 3 January 2019

Date of Judgment: 10 January 2019

___________________

J U D G M E N T

___________________


Hon B Chu J (giving the Judgment of the Court):

1. This is the applicant’s appeal against the Decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 3 September 2018 refusing him leave to apply for judicial review.

Background

2. The applicant is a national of Pakistan. He had raised a refuge application on 23 May 2007 after coming to Hong Kong earlier, but withdrew it on 4 March 2013. He voluntarily returned to Pakistan in April 2013. He illegally entered Hong Kong again on 2 April 2014 and was arrested by the police on the same day. On 4 April 2014, he raised a claim for non-refoulement protection and was later released on recognizance on 17 April 2014. He subsequently filed a Supplementary Claim Form (SCF) on 15 February 2016. On 18 April 2016, the Director of Immigration (“the Director”) decided to allow the applicant to make a subsequent claim on his torture risk, and informed him that his claim would be assessed on all applicable grounds, including the torture risk. He later filed the completed Non-refoulement Claim Form (NCF) on 3 May 2016.

3. The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the family members of a Mr Usman because of the love affair between the applicant’s cousin and Mr Usman’s sister. The factual background of this case was summarized in [1] – [14] of the CALL-1 Form dated 3 September 2018 (published as [2018] HKCFI 1994).

4. By two notices of decision dated 25 May 2016 and 15 September 2017, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong. The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk, and the latter the BOR 2 risk[3].

5. The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”). An oral hearing was held on 24 October 2017, during which the applicant answered questions put by the Board. After hearing the applicant, the Board found no evidence that the applicant was the target of the family of Mr Usman. The Board also considered that state protection was available to the applicant and internal relocation was a viable option for him. The Board was not satisfied that there were substantial grounds for believing that the applicant would be subjected to ill-treatment if he returned to Pakistan. The applicant’s appeal/petition was dismissed on 29 December 2017.

The Judge’s decision

6. The applicant applied to the court for leave to apply for judicial review. According to the Form 86, the intended applicant for judicial review was against the decisions of the Director and the Board. The grounds for seeking relief were set out in the applicant’s affirmation dated 26 January 2018 as follows:

(a) The lack of legal representation for the Director’s assessment of his BOR 2 risk and the appeal before the Board rendered the process unfair and should be considered as a miscarriage of justice;

(b) The applicant was not given a translated copy of his Non-refoulement Claim Form (“NCF”), and hence he was not able to ascertain the accuracy of the form and thereby his rights were jeopardized;

(c) The applicant did not receive the letter from the Director inviting him to submit additional facts in relation to his BOR 2 risk;

(d) The Director failed to give sufficient reasons for the rejection of his claim concerning his BOR 2 risk, and the Board failed to give sufficient weight to the country of origin information (“COI”) regarding the malpractice of the police in Pakistan, as well as to give proper explanation in rejecting his claim; and

(e) It was unfair for excusing the Director from attending the hearing before the Board.

7. An oral hearing was held on 20 June 2018. After hearing the applicant and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave to the applicant to apply for judicial review. The reasons in refusing leave were set out in [37] – [51] of the CALL-1 Form as follows:

“37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

39. The Applicant complained he had not been provided with legal assistance for his appeal to the Board.

40. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. There is no evidence the Applicant had re-applied for legal assistance from the Duty lawyer Service after the Director's decision. He also cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

41. The Applicant complained he was not given a translation copy of the non-refoulement form (“NCF”). He therefore could not find out if the interpreter had been translating the basis of his claim properly. He said he did not understand the documents sent to him by the Director because there was no translation.

42. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

43. Even though the Applicant had a friend who could provide him with language assistance, the Applicant by now still failed to show there was indeed any mistranslation/ misinterpretation in the NCF. His complaint has no substance at all.

44. The Applicant said he had not received the Director's letter dated 21 June 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He also accused the Director failed to provide proper explanation on the BOR2 risk decision.

45. The Director's letter dated 21 June 2017 was sent to the Applicant. There was no evidence of undelivered or misplaced post. If the Applicant had not received that letter as already sent out by the...

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1 cases
  • Re Haider Sufyan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 8 April 2019
    ...U D G M E N T ___________________ Hon B Chu J (giving the Judgment of the Court): 1. By the judgment dated 10 January 2019 (published as [2019] HKCA 26), this Court (Lam VP and B Chu J) dismissed the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 3 Septembe......

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