Jahanzaib Mian Khuram v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL395/2017
[2018] HKCFI 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 395 of 2017

BETWEEN

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who claimed to have sneaked into Hong Kong on 12 May 2013 only to be arrested on the same day by the police.  He lodged a non-refinement claim which was rejected by the Director of Immigration (“the Director”) on 12 August 2016 and 12 April 2017.  The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected it on 22 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 10 July 2017.  The applicant requested an oral hearing which was set down for 15 November 2017.  A notice of hearing dated 30 August 2017 was posted to the applicant informing him of the hearing date.

2.The applicant appeared in person on 15 November 2017 and I began to hear submissions when he suddenly informed the court that he had applied for legal aid only the day before.  The court then asked the reasons for such a late application made the day before the hearing.  The applicant’s only explanation was that he did not know about legal aid earlier and therefore it was not his fault (it was so late).

3.Under section 15 of the Legal Aid Ordinance, Cap 91 and its regulations, there is usually an automatic stay of proceedings of 42 days following an application for legal aid unless otherwise ordered by the court.  It is in the court’s discretion.  The guiding principle is to do what is fair and just between the parties.  If a court is satisfied that the application for legal aid was an abuse of process, then the court should exercise its discretion to lift the stay.

4.On 3 August 2017 this court wrote to the applicant at his current address asking whether he was represented or in the process of applying for legal aid.  This letter was dated about three weeks after his leave application was made.  If he had received it, he would have been alerted to the need to apply then.  The applicant did not reply to this letter.  During the hearing he said he did not receive this letter but did receive the notice of hearing dated 30 August 2017 at the same address.  He must have received that because he wrote in asking for an adjournment for four weeks due to illness.  I find it hard to believe he did not receive the previous correspondence and then applied for legal aid one day before the hearing.  I suspect the only reason for the timing of the late application is to delay the hearing by at least 42 days.  I suspect this applicant is abusing the process, I exercised my discretion and lifted the legal aid automatic stay.  I proceeded with the application that same day.

Background

5.The basis of the applicant’s claim was that if he was to return to Pakistan, his life was in danger for two reasons.  He was an active member and then leader of a political student group called the Muslim Student Federation which was linked to a political party called the Pakistani Muslim League Q (“PML‑Q”).  He had been tricked or forced by a well-known Pakistani politician called Moonis into giving evidence against some terrorists.  Those terrorists then found out his identity and attacked him, nearly killing him.  The applicant after he was released from hospital, confronted Moonis who then threatened to kill the applicant and had false cases filed against him with the police.  He claims to be at risk of harm from three sources; the terrorists, Moonis and his associates as well as the police.

6.Both the adjudicator and the Director set out the applicant’s claim and evidence in full and in detail in their decisions therefore I only need to summarise it here.  In May 2001 whilst at college, he became politically involved with the PML‑Q and its student wing; in particular, Moonis who was the son of a party leader.  In October 2007 Moonis asked the applicant to give him a copy of his identity card allegedly for election matters.

7.In January 2008, the applicant received threatening phone call from the Taliban who said they had seen his identity card on a witness list and accused him of testifying against them.  In May 2008, he was shot in the legs and back by two men carrying a pistol and AK-47; he heard an accusation that he was shot because he had given testimony against the Taliban.  He survived the serious injuries, many operations and was in a coma for a month.  He was unable to give a statement until two months later. He was not discharged until November 2008.  He left his home and moved between friends to avoid being located. Moonis never visited him and denied all knowledge of the attack until November 2010.  Instead of explaining why he involved the applicant, he threatened to frame the applicant with false cases.

8.The applicant then went to make a complaint to the Session Court in Lahore.  Not long after, his relatives told him that police were looking for him, alleging he was involved in robberies and other criminal cases.  The applicant believed that Moonis had framed him as threatened.  His health was deteriorating because he was hiding without medical treatment.  In mid-2011, he fled to Karachi and hid therefore 10 months but returned to Lahore in March 2012.  He continued to hide in homes of several friends because he was told the police were still looking for him.  Moonis had ruined his life.  Eventually he did not want to hide any longer and made arrangements to leave Pakistan.  A passport was issued in August 2012, a Chinese Visa granted in April 2013 and he left Pakistan on 5 May 2013.  He says this passport and his Pakistan identity card actually do not carry his real name or birthdate.

9.Both the Director and the adjudicator of the TCAB assessed his claim on the basis that his injuries and the false cases against him in Pakistan were not in dispute.

10.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

11.The adjudicator of the TCAB treated the appeal as a rehearing.  He correctly set at the law and key legal principles applicable to those four grounds.  He conducted an oral hearing and the applicant elected to answer questions.  This hearing was conducted with care and a high standard of fairness.  The decision was lengthy and the adjudicator spent time setting out the applicant’s case.

12.He set out the applicant’s evidence from his non-refoulement claim form (“NCF”) as well as the contents of his two screening interviews.  He then gave full details of the appeal hearing and the questions and answers therein.  This was necessary because the applicant’s claim was not straightforward.  In his screening interviews he added significant detail to his claim.  Then when asked in his appeal hearing what caused him to flee Pakistan, what he said was quite different to what was written in his claim form.

13.There was much discussion about the lack of documents, mainly because from the very beginning the applicant had stated he would have supporting documents within one month of submitting his NCF in March 2016.  He had then stated in his interview with the Immigration officer that he would also have the Sessions Court case supporting documents shortly.  His explanation was that everybody had told him when he went before the Immigration Department they would do nothing, but now that he found himself appearing before the TCAB and a white person/adjudicator he thought perhaps he could provide them now within three months.

14.The adjudicator told him categorically that the race of the decision maker was irrelevant. In paragraphs 57 to 61 of his decision, the adjudicator very fairly dealt with the applicants misconstrued understanding. The adjudicator nonetheless gave the applicant a further six weeks to obtain and submit documents and those included his FIR, his court case documents, his birth certificate, his school certificate, his political party certificates and any business documents such as a business card.  During that time period, only an FIR was submitted.

15.From paragraph 62 of his decision, the adjudicator deals in great detail with the applicant’s evidence and shows a careful analysis and a fair assessment leading to the adjudicator’s consideration and conclusion.  The adjudicator considered the FIR submitted and found the events it described differed in many material respects to the accounts he provided in the NCF and appeal hearing.  This being the only document he submitted, it was substantially at odds with his written and oral evidence and led the adjudicator to question the accuracy of both accounts.  The adjudicator concluded that the applicant’s repeated requests for more time to provide documents were in fact delaying tactics.  The adjudicator accepted he had been seriously injured in a shooting accident prior to his arriving in Hong Kong but because of the adverse view he formed of the applicant’s credibility this affected the seriousness of the threat faced by the applicant if he returns to Pakistan.

16.The adjudicator went on to consider the threat of harm from the Taliban as well as Moonis and his associates and lastly the Pakistani authorities.  As far as the threat of harm from the Taliban is concerned, the adjudicator found inconsistencies and deficiencies in respect of this claim.  He did not believe that the applicant’s injuries were as a result of a revenge attack from the Taliban.  He set out the reasons why in his decision.

17.As far as the threat of harm from Moonis is concerned, the adjudicator accepted the applicant was familiar with him and his family’s background but he had failed to produce any evidence he said he could produce relating to his leadership role in the student wing of the party and his past dealings with Moonis including the court case he was said to have instigated.  The adjudicator noted the applicant himself seemed unconvinced that Moonis was a serious threat to him if he returned home.

18.Lastly, as far as the threat of harm from the Pakistani authorities is concerned, the adjudicator did not believe there were several false cases pending against the applicant.  This was because he did not find the underlying claims relating to the Taliban and Moonis credible.  There were other reasons and they were set out in the decision, it included the fact the applicant had remained in Pakistan for a number of years without encountering any problems with the police.

19.The adjudicator did consider that if he was wrong and there was a risk then, internal relocation was a viable option for the applicant.  The applicant had given himself a new identity with documents and if he did not return to his home area there was little chance of anyone recognising him in other large cities in Pakistan.  Whilst his injuries may prevent him from doing physical work, the adjudicator considered that would not stop him from work in the motor trade in which he had experience.  In addition, he spoke Urdu as well as Punjabi.  The adjudicator found he could safely and reasonably relocate to Karachi and avoid any threat of harm.

20.In view of his findings, the adjudicator found the applicant was at no risk of torture or CIDTP or persecution or a violation of his right to life.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

21.The applicant has sought to judicial review both the decisions of the Director of Immigration as well as the adjudicator of the TCAB.  This in my view, is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or a rehearing.  Thereafter, there is no room for judicial review of the Director’s decision.  I have considered the grounds of the applicant’s application against the decision of the TCAB only.

22.In any event, his grounds against the Director have no merit.  He accuses the Director of having failed to appreciate the presence of State acquiescence and consider whether the State failed to provide reasonable protection to the applicant.  A reading of the decision shows otherwise.  The Director’s decision is considered Wednesbury unreasonable without further particulars which takes the accusation no further.

23.The applicant accuses the adjudicator of failing to make sufficient enquiry before determination.  He is accused of failing to appreciate the seriousness of the applicant’s injuries.  The adjudicator does accept the applicant’s injuries were serious and caused by bullets and gun wounds.  What he did not accept was the circumstances under which the applicant claims he was shot; in a revenge attack by the Taliban.  The adjudicator agrees his injuries were severe but does not agree they can be defined as torture.  He gives full reasons for his findings and they are careful and reasonable, I find no fault in his judgement.

24.None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  There were no grounds that were reasonably arguable and there is no realistic prospect of success.  I refuse leave for judicial review.

Dated 31^st day of January 2018.

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

Form CALL-1