Hameed Bilal v. Torture Claims Appeal Board

HCAL 174/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 174 OF 2017

___________________

___________________

______________________________________

REASONS FOR JUDGMENT

______________________________________

1.The applicant was arrested on 10 July 2013 by the Hong Kong police for the offence of unlawfully remaining. He told the police he entered Hong Kong on 7 July 2013 illegally by boat from the mainland China. A non‑refoulement claim was lodged on 13 July 2013 and he was released on his own recognizance on 21 August 2013.

2.The basis of the applicant’s claim was that he dated a young lady, Sana, from a wealthy family well‑connected to a powerful political party in Pakistan, the Pakistan Muslim League (N) (“PML(N)”).  They start to date secretly in early 2012 but when Sana’s father found out he strongly objected to their relationship.  The applicant and his family were harassed which lead him to leave Pakistan in May 2013.

3.The applicant fears if he returned to Pakistan he would be subject to harm, ill-treatment and persecution from Sana’s family.  He also claimed he was falsely implicated in a 2016 murder in Pakistan and lived in fear that the victim’s family would seek revenge.

4.The Director of Immigration (“the Director”) rejected his claim on 7 March 2016.  By a Notice of Further Decision dated 30 December 2016, the Director found the applicant also failed to establish a personal and real risk that his rights under Article 2 of the Hong Kong Bill of Rights, (BOR2) right to life, would be violated were he to return to Pakistan.  His appeal to the TCAB was dismissed on 11 April 2017.  He filed an application for leave for judicial review of the TCAB adjudicator’s decision on 2 May 2017.

5.The court fixed an oral hearing as requested by the applicant for 17 July 2017.  The applicant failed to appear and absented himself.  I am satisfied he was aware of the hearing date as he wrote a letter dated 10 July 2016 (received on 13 July 2016) informing the Court he did not feel confident attending without legal representation and the Court could dispense with the hearing date.  There was no notice of an application for legal aid.

6.Despite the applicant’s absence, I have considered the application.  I have perused the documents in support of the application including the decisions made, the relief sought and the grounds relied on by the applicant.  Having considered the merits of the application, leave to judicial review the adjudicator’s decision is refused.

Background

7.The applicant was born on 1 January 1989 in Lahore, Pakistan.  He has five siblings all living in Pakistan.  His parents still live in his childhood home.  He attended high school in Lahore from 1998 to 2008.  From 2008 to 2010 he studied commerce in the Punjab College of Commerce in Lahore.  From 2010 to 2012 he studied for a Bachelor of Arts at the Noor Centre in Lahore.  He met a girl called Sana whilst studying there and they began to date.  He has never worked or been employed in Pakistan.

8.They began to date secretly because both knew Sana’s family would not approve of their relationship.  He comes from a lower income family whilst she comes from a wealthy and politically connected family.  Her father, Mr. Ghazali is a leader of the PML (N) and a member of the provincial assembly of the State of Punjab.  He is in the iron business and connected to the brothers of the Pakistani Prime Minister.  He is often seen at and involved in political rallies and campaigns with members of the Prime Minister’s family. Sana’s uncle, Mr. Sindu, is a police officer and works at the police station near the Noor Centre in Lahore. Their relationship was discovered by Sana’s family in April 2012.

9.After that discovery, the applicant was told about nine police officers came to the Noor Centre looking for him.  He immediately went home to avoid those officers.  He was concerned the police were going to fabricate a case against him so he left home and began to move around Pakistan to avoid detection.

10.During that time, he was told his family were harassed and verbally abused by police officers on several occasions who came to his home looking for him.  Neither he nor his family made any official complaints because of Sana’s family connection to the police force.

11.Because of the continual harassment by the police looking for him the applicant decided to leave for Hong Kong.  He left Pakistan using his passport and flew to China via Bangkok without incident.  He didn’t make any non‑refoulement claims in those countries because he did not know how to.  He then paid a snakehead after he had been in China for about two months to bring him to Hong Kong by boat.  The applicant said he entered Hong Kong on 7 July 2013.

12.He dared not call his family at home in case the police were bugging the phones.  He was told by friends that the police and some strangers still regularly visited his family home looking for him.  On more than one occasion, an unknown man shot a gun into the air near his home.

13.The applicant’s brother‑in‑law, Mr. Awan Youssef (“Awan”), was a Hong Kong resident and ran a successful mobile phone business here.  He gave the applicant money regularly after his arrival in Hong Kong.  In July 2013, Awan went back to Pakistan but was shot dead outside the applicant’s home.  The applicant was told Sana’s family said they had Awan killed because he had provided support to the applicant in Hong Kong.  His family were warned not to report them to the police.

14.Later the applicant was told the brother of the killer of Awan was shot dead and the rumour was that the applicant had arranged this killing to revenge Awan’s death.  He was concerned he would be framed for this death if he returned to Pakistan.

The decision of the Director of Immigration

15.The Director concluded the applicant’s non-refoulement claim was not substantiated.  It was assessed on all applicable grounds including torture risk, BOR 3 risk and persecution risk.  The Director subsequently reviewed it taking into account the BOR 2 risk as well.

16.The Director found the applicant had not suffered severe pain or harm from anyone.  Ill‑treatment claimed did not amount to “a minimum level of severity”.

17.He also found insufficient evidence the applicant was subject to a real and future risk of being harmed upon a return to Pakistan.  An imminent fear of threat was not established.

18.There was nothing to suggest Sana’s family were so powerful as to be able to find him anywhere in Pakistan nor were they that dedicated to finding him.

19.All the incidents at the applicant’s home were details from hearsay evidence.  He was never personally approached by any member of Sana’s family nor a police officer.  His fear was entirely speculation.

20.The director found the applicant could rely on the available state protection.  There was nothing to suggest there was any official involvement in what was a personal and private issue with the family of the applicant’s girlfriend.  There was insufficient evidence to suggest the authorities of Pakistan would not protect him if need be.  The director referred to objective COI material.  It was found internal relocation was available to the applicant without undue hardship.

21.The director found the applicant’s case did not warrant non-refoulement protection on the grounds of BOR 3 risk nor persecution risk.  Moreover, there were no grounds for believing he faced a genuine risk of being subject to torture if he returned to Pakistan.  He subsequently considered and rejected a BOR 2 risk.

The decision of the TCAB Adjudicator

22.An oral hearing was held before the adjudicator on 28 February 2017 and the applicant elected to give evidence.  The adjudicator doubted the evidence concerning the death of his brother‑in‑law in the Pakistan.  The name of Awan does not appear in the documentation submitted by the applicant allegedly relating to this death.  The deceased is referred to as a Mohammed Yusuf in some documents and Yusaf Khan in a newspaper article; not Awan Yusuf.  Also according to documents submitted the shooting took place outside the deceased’s own home and not the applicant’s home.  The adjudicator found inconsistencies and discrepancies that undermined the credibility of the applicant’s evidence.  He specifically found the applicant not to be a credible witness.  He too identified this as a personal and private issue arising out of a romance not approved by his girlfriend’s family.

23.Nevertheless, the adjudicator considered all the applicable claims and referred to COI material objectively.  He considered the information and material supplied by the applicant. He concluded there was nothing to support the applicant had a well‑founded fear that he would be subject to persecution for a convention reason, if he is refouled to Pakistan; he failed under the claim of persecution risk.

24.He clearly considered the claims afresh and came to the same conclusions as the director.  The adjudicator did not consider the applicant a credible witness and found on the evidence, even if true, there was no substantial grounds for believing the applicant would be liable to torture if refouled to Pakistan; he failed under the claim of torture risk.

25.He was equally not persuaded there were substantial grounds for believing the applicant would face a genuine and substantial risk of being subjected to severe ill‑treatment if he is refiled Pakistan; he failed under the BOR 3 risk claim.  The adjudicator also found there no suggestion that his rights under BOR2 risk would be violated.

26.Lastly, he found the applicant could have relocated elsewhere within Pakistan.  The adjudicator found even if there had been a risk of the applicant being ill‑treated upon his return to Pakistan such risk was confined to the area in which he had lived. Any risk could be effectively eliminated by internal relocation without undue hardship.

Judicial review

27.The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

28.The legal principles for judicial review are worth repeating.  The court plays a supervisory role and will consider several crucial issues:

a. were there any errors of law;

b. did the procedures adopted at the hearing of the petition/appeal satisfy the high standard of fairness required and;

c. did the substantive decision satisfy the enhanced Wednesbury test.

29.The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of high fairness have been met.  (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 45)

30.This court set down a date for an oral hearing as requested.  The applicant’s Form 86 sets out for grounds on which relief is sought; namely there were errors of law, procedural unfairness, failure to apply the proper standard of proof and the decision was Wednesbury unreasonable.

31.However, what is in the supporting affirmation does not cover all the grounds set out.  What the applicant complains of is that the TCAB board did not give him sufficient time to prepare for his hearing because the bundle was only served on him ten days before the hearing date.  That hearing date was in any event subsequently adjourned for nearly two months.  He complains no one was arranged to translate the bundle to him prior to either hearing.  An interpreter was provided for the hearing and at the applicant’s disposal.  There is no record of any complaint from the applicant.  He clearly understood the procedure explained to him. There is no substance in this ground.

32.The applicant also claims the process was so long he was unable to get relevant information to support his claim.  He lodged his non‑refoulement claim in July 2013 but it was not rejected until March 2016.  The time gap he says meant he was, by the time of his hearing, unable to retrieve relevant information.  The short answer to that was he should have worked on that information from the moment he lodged his claim in anticipation and readiness for the hearing date to come. It was incumbent on the applicant to provide detail he wished to rely on to support his claim.  This ground is rejected.

33.The applicant accused the adjudicator of relying on COI material that was not officially recognised or was simply hearsay as well as outdated.  The adjudicator said at paragraphs 12 and 13 of his decision he was careful to differentiate between the COI content and the Directors commentary thereon.  He reminded himself at that point that in deciding the petition before him his function separate from the function of the Director in making a decision.  He viewed the material relied on by the Director objectively and afresh.  The applicant’s criticism is a bare assertion.  The COI material is varied, recent, relevant and detailed.  This ground is rejected.

34.I find the adjudicator’s decision to be without fault.  The adjudicator analysed the material, claims and evidence carefully; logically and with caution.  He also applied the correct standard of proof.  The applicant’s complaints against the adjudicator and the procedure undertaken are not substantiated.  This finding also applies to the hearing before the Director of Immigration and his findings.

35.Bearing the crucial issues in mind and applying the standard of review in considering leave, I find the applicant has not demonstrated he has a reasonably arguable claim with a realistic prospect of success.  There were no errors of law or any evidence of procedural unfairness.  The decision was not Wednesbury unreasonable.  I see no error in his findings of fact.  Therefore, leave to apply for judicial review is refused.

The applicant did not appear and was not represented