Shakeel Muhammad v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL473/2017

[2018] HKCFI 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 473 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 illegally entered Hong Kong on 30 November 2013 only to be arrested on same day by the police.  He lodged a non-refoulement protection claim on 8 December 2013 which was rejected by the Director of Immigration (“the Director”) on 2 February 2016 and 9 February 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 14 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 1 August 2017 and requested an oral hearing which was set down on 22 November 2017.  The applicant appeared in person.

2.The basis of the applicant’s claim is that if he were refouled to Pakistan he would be harmed or even killed by his maternal uncle, Khan and his men due to a dispute over land owned by his father.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

3.The applicant was born in 1984, received 13 years of education and in 2013 completed a hotel management diploma in the United Kingdom.  He returned to Pakistan when he graduated.  He is the eldest son and in line to inherit land from his father.  His father owns land that is coveted by his uncle.  The land is valuable, close to the applicant’s family home and can be built on.  His uncle, Khan is a property agent and wealthy as well as a supporter of the Awami National Party, the ruling party in the area.  In 2012, Khan illegally possessed the land and openly announced that it belonged to him.  Khan wanted his brother, the applicant’s father to transfer the land to him for a low price.  The applicant’s father refused but at the same time did nothing about the illegal possession.  He waited for the applicant to return home to deal with his uncle.

4.In 2013 the applicant returned home and intended to build a house on that land.  One day in September he and his father went to the land but his uncle appeared.  A heated argument started when Khan said he intended to build a house on it himself.  The parties separated but that night Khan went to the applicant’s home where the applicant insisted that he would build his own home on that land and would start building the following day.  His uncle was furious when he left.

5.The following day, the applicant and his father went to his land but was met by Khan and two unknown men.  Those men were armed with pistols and warned the applicant not to enter.  The applicant entered despite the warning and was attacked by Khan and the two men.  The attack only stopped when some villagers arrived.  This was short lived because the applicant was attacked again and had to be escorted home by the same villagers. He sought medical treatment for bleeding nose, bruises and swellings on his body.

6.On that day he and his father went to a police station to file a police report against Khan but the police officers refused to register the case because his uncle was a powerful person.  They advised him to settle the matter personally.  The applicant’s father was worried about his safety and advised him to leave home immediately.  That same evening the applicant’s father sent him to his maternal aunt’s home some 50 km away.  His father then made travelling arrangements for him to leave Pakistan.  Whilst he was living with his aunt, Khan kept asking for his whereabouts.  He eventually left Pakistan on 27 November 2013.

7.The Director and the adjudicator 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”).

8.The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  The procedure was explained to the applicant with the assistance of an interpreter and he decided not to answer any questions nor did he have anything to add.  He said that he still felt he would be at risk if refouled to Pakistan.  The adjudicator then correctly set out the law and key legal principles as well as the authorities relevant to the four applicable grounds.  He set out the applicant’s case gleaned from the non-refoulement claim form and his screening interview.  It appears he accepted the applicant’s evidence as the truth and proceeded to assess his claim on that basis.

9.As far as the persecution risk was concerned, he found the applicant’s fear arose from a dispute with his uncle that was private and personal in nature.  He could not demonstrate he was at real risk of persecution because of a Convention reason meaning either because of race, religion, nationality, membership of a particular social group or political opinion.  His persecution risk claim failed.

10.The applicant was unable to invoke the protection of BOR 3; the adjudicator found the applicant had not shown that there were substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of torture and CIDTP.  As far as the BOR 2 risk is concerned, there was no suggestion that his rights under BOR to would be violated.

11.Lastly, his claim and evidence did not amount to torture as defined by section 37U(1) of the Immigration Ordinance.  It was a personal dispute and there was no suggestion that the incidents described by the applicant involved any State actor acting in an official capacity.  He was able to leave Pakistan without encountering any problems and there was no suggestion that the government had any interest in him at all.  The torture risk claim failed. The adjudicator confirmed the decision of the Director.

12.The adjudicator did consider internal relocation; even if the applicant had been able to show that he faced a real or genuine risk of harm, it would have been confined to the local area where he and his family lived.  Therefore, according to the Country of Origin information the adjudicator considered relevant, the applicant being young and educated would have been able to relocate internally without undue hardship in Pakistan.

Leave to apply for judicial review

13.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

14.There are eight grounds in this affirmation and most contain no particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Another example would be ground 6; it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  In fact, during the hearing the applicant said he did not rely on this ground.  These grounds have no merits.

15.In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up‑to-date Country of Origin material and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator found no grounds to find the applicant to have a real or personal risk of torture or ill-treatment if refouled.  As for ground 4, despite a lack of particulars, there was no evidence that the State failed to provide reasonable protection or that the State deliberately did nothing to assist the applicant. These grounds are not reasonably arguable.

16.The applicant complains he was not given sufficient time to prepare for his hearing, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

17.There is a complaint the applicant answered all the questions during the appeal honestly and is aggravated that his credibility was found questionable.  This submission makes no sense when the adjudicator made no finding as to credibility and clearly believed the applicant’s evidence and claim.

18.There is also a complaint that the Director did not screen or assess the BOR 2 risk claim before the adjudicator of the TCAB.  This submission makes no sense when the Director’s BOR 2 decision is dated 9 February 2017 and the appeal hearing is dated 14 July 2017. Clearly the adjudicator is considering the rejection by the Director of the BOR 2 risk so the Director must have assessed it first.

19.I do not find any ground that shows there was an error of law by the adjudicator.  I see 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.

20.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 9^th day of February 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