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Re Raza Ahmed

Judgment Cited authorities 19 Cited in 1 Precedent Map Related
Vincent
Judgment Date21 September 2018
Neutral Citation[2018] HKCA 629
Year2018
Judgement NumberCACV197/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV197/2018 RE RAZA AHMED

CACV 197/2018

[2018] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 197 OF 2018

(ON APPEAL FROM HCAL 796/2017)

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RE: RAZA AHMED Applicant

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Before: Hon Yuen JA and Hon Barma JA in Court
Date of Hearing: 11 September 2018
Date of Judgment: 21 September 2018

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J U D G M E N T

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

1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 25 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 13 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Pakistan. He entered Hong Kong on 13 September 2011 as a visitor. He surrendered to the Immigration Department on 19 October 2011. He lodged a non-refoulement claim on 3 November 2011.

3. The applicant’s claim was based on the threat from members of the Pakistan People’s Party. According to the applicant, he testified against those members in a murder case in around 1996. After their release, they threatened to harm the applicant. He decided to flee to Hong Kong.

4. By a Notice of Decision dated 13 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 21 August 2017, the Board dismissed the appeal on 25 August 2017 (“Board’s Decision”).

6. At [29] of the Board’s Decision, the Board accepted that if the applicant returns to Pakistan and continues living in his hometown, there is more than a remote or speculative chance that his enemies will be able to locate him and cause him harm. However, the Board was satisfied at [39] that his enemies will not be able to locate him if he moves to another part of Pakistan which is far away from his hometown.

The deputy judge’s decision

7. The applicant filed a Form 86 on 20 October 2017 against both the Director’s Decision and the Board’s Decision. The Form 86 contained the following grounds for judicial review against the Director:

(1) The Director considered the COI with a “pre-conceived narrative” and had an unfair attitude.

(2) The Director failed to consider COI favourable to his case regarding police corruption in Pakistan.

(3) The Director failed to consider properly the issue of state acquiescence (including extended state acquiescence).

(4) The Director was prejudicial and wrong to find there was reasonable state protection available to him.

8. The Form 86 contained the following grounds for judicial review against the Board:

(1) The Board failed to make sufficient inquiry.

(2) The Board failed to give him sufficient opportunity to arrange relevant evidence.

(3) The Board was wrong to rule that he had failed to adduce credible evidence to prove his claim.

9. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 43 to 49 of the CALL-1 form:

“43. Although the immigration officer considered the Applicant had over- perceived his risk, he did not reject the Applicant's version as incredible. He still evaluated the situation as the Applicant claimed.

44. The Adjudicator was more liberal than the immigration officer in his interpretation of the Applicant’s situation. The Adjudicator was willing to put aside any doubt of the Applicant's allegations. He accepted the Applicant’s claim of fear of risk as something more than being remote or speculative. However, he considered such risk would only be real if the Applicant went back to live in his home town. The Adjudicator found the Applicant could live away from his home town to avoid his enemies and thus avoid the feared risk. The Adjudicator considered there was reasonable internal relocation in Hyderabad. That was a large city near Karachi (the capital of Pakistan). The Adjudicator reasoned that the Applicant’s enemies would not be motivated to look for the Applicant away from his home town after so many years since the conflicts.

45. The Adjudicator was right to point out that an applicant, even though facing some risk of harm, would not have a real risk if he could be reasonably relocated internally in his country. Reasonable internal relocation means the new place of living would be reasonably safe and the Applicant would not suffer undue hardship.

46. Although Hyderabad was 1,200 km from the Applicant's home town, it was still within Pakistan and therefore much nearer than any other foreign refuge, say Hong Kong. The Applicant at his age and ability could make a living in Hyderabad, which was a reasonable shelter in his case.

47. The immigration officer and the Adjudicator, though by slightly different routes, had come to the same conclusion, i.e., the Applicant's case did not warrant non-refoulement protection.

48. The Applicant raised some complaints against the Director and the Adjudicator (see paras 35-36 above). Those complaints are vague. The Applicant could not provide particulars in court. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of those complaints.

49. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator. Both had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director’s report and the Adjudicator’s report showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings,...

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1 cases
  • Re Raza Ahmed
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 December 2018
    ...(Maria Yuen) (Carlye Chu) (Aarif Barma) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 629 ...

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