Bashir Arfan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL480/2017

[2018] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 480 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 entered Hong Kong on 11 January 2013 and was permitted to remain as a visitor until 25 January 2013.  He was granted an extension of stay for three days.  However, he did not leave and overstayed since 29 January but was arrested by the Hong Kong police on 20 August 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 22 April 2016 and 23 December 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 20 July 2017.  He filed a notice of application for leave to apply for judicial review on 4 August 2017 and requested an oral hearing which was set down on 30 October 2017.  The applicant appeared in person at the hearing.

2.The basis of the applicant’s claim was that if he were to return to Pakistan he would be harmed or even killed by his sub‑agents, students and their parents because he owed them all money.  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 established a travel agency and consultancy business in Mirpur in 2007 which sold tickets and arranged student visas as well as college placements for Pakistani students to study in the United Kingdom.  The company acted as an agent for another company in Pakistan called “Best Consultant”, from which it received a commission on fees collected from the students.  The applicant had five sub‑agents who would introduce potential customers to his company and with whom the applicant normally shared any commission received from Best Consultant.

4.The company ran smoothly and successfully until 2011 when the UK embassy in Islamabad rejected approximately 35 student visas submitted by the applicant’s company.  However, the applicant was unable to reimburse fees that it had collected from the students and had already paid two UK colleges; a total sum of about £62,000.

5.In December 2012 his problems came to a head when the five sub‑agents told the students and their parents that their money could not be refunded leading to an angry confrontation in the applicant’s office.  Two days later, two of the sub-agents kidnapped the applicant at gunpoint and held him captive in a bungalow for two days.  There were other men in the bungalow and he was stripped naked, assaulted and subjected to buggery which was filmed.  He was threatened that if he did not repay the money then that footage would be posted on the Internet. Those two sub-agents seized two of his vehicles as well.  The applicant did not seek medical attention for his injuries as he was too embarrassed to tell a doctor he had been anally raped.

6.He did make a police report about his kidnapping but no FIR, First Information Report, was registered because the senior officer told him that it was a money dispute and in any event, some politicians had called the station about this matter.  He was advised to settle the matter. It transpired that his sub‑agents had political connections.  The following day the two sub-agents that kidnapped him turned up at his home demanding to know why he made a police report and threatened to kidnap his son from school if he did not repay his debt.  The applicant did not dare to report this threat to kidnap his son to the police.

7.After this serious threat, the applicant discussed his situation with senior members of his village who advised him to leave the village as soon as possible.  The applicant followed their advice and fled to a friend’s home by bus some five hours away where he lived for about two weeks.  His family told him that the sub-agents, the students and the police were searching for him at home.  His wife advised him to leave Pakistan.  He snuck home late one night to collect his passport and ID in late 2012 and eventually flew out of Pakistan on 11 January 2013 for Hong Kong.

8.His wife and children then moved into his mother‑in‑law’s home and his wife no longer wished to speak to him.  His mother told him in April 2015 that there were warrants for his arrest issued and a friend obtained copies from the police.

9.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”).

10.The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  The applicant was represented by the duty lawyer scheme.  The adjudicator set out correctly the law and key legal principles relevant to the four applicable grounds.  He also allowed an adjournment because the applicant had new evidence from Pakistan in relation to his brother being very recently severely beaten because of the applicant’s debt.  In the adjournment period the applicant submitted a letter through the duty lawyer scheme written in Punjabi from the applicant’s brother to his applicant with an English translation.

11.The adjudicator then set out his assessment of the applicant’s claim after reminding himself of the relatively low standard of proof required.  He did not find the applicant a credible or reliable witness; not even sufficiently reliable to establish the centrepiece of his claim.  He then set out the reasons for his conclusion in detail.  He set out the material inconsistencies and contradictions as well as the explanations that he offered when asked to clarify.

12.The adjudicator did not find him a good witness in that he was vague and prevaricated.  He appeared to be reciting a rehearsed story rather than reliving his experiences.  He took into account that his claim concerning his ill-treatment in Pakistan rested exclusively on his bare assertions which were generally lacking in detail and significant parts of his evidence were hearsay.  Hearsay is not inadmissible but the weight that can be attached to it is greatly reduced.  Other parts of his evidence were pure speculation with no supporting evidence.

13.The adjudicator took into account that those incriminating naked photographs were never downloaded onto the Internet when he did not repay the money.  If what the applicant said was true, there was no reason for the sub-agents not to carry through with their threat.  They kidnapped him so when they threatened to kidnap his son from school the applicant did not stop his son attending that school which the adjudicator found implausible if there was a real threat.  He found it unbelievable that his wife who was supportive would stop talking to him the minute he left for Hong Kong.  So much of his evidence did not make sense.

14.The adjudicator took into account his delay in lodging his non-refoulement claim; he overstayed by more than seven months and then only lodged it after he was arrested.  This does damage his credibility.  His explanation about his lost passports also was not to be believed and adversely affected his credibility.

15.The adjudicator inspected the two warrants of arrest and found them to be suspicious, poorly worded and made little sense.  The adjudicator found that since he was willing to use false documentation to facilitate a stay in Hong Kong he was also likely to falsify these as well.  The adjudicator clearly did not accept these documents for what they were alleged to be.

16.The adjudicator did go on to consider the four applicable grounds on the basis that the applicant’s evidence was true.  He first considered whether there was any State protection available to the applicant in Pakistan.  He did consider the Country of Origin (“COI”) material that the Director considered relevant.  He did consider the objective COI that corroborated the applicant’s assertion the police were corrupt in Pakistan.  However, he also found significant COI to show that there were recent and ongoing efforts to implement strategies and programs to bring about improvements to corruption, illegal detention and the delay in registering FIR’s.  He found that there was State protection available and no evidence that there was government or State acquiescence in any police misconduct where the applicant was concerned.

17.He did go on to consider the COI relevant to prison conditions in Pakistan; particularly country guidance into prison conditions.  The applicant had to show that there was a risk that was personal to him.  The adjudicator found that even if he did accept the arrest warrants were authentic, it did not mean that the applicant had no opportunity to apply for bail and/or receive a fair trial or that he would personally be at risk of being harmed by the police if arrested.

18.The adjudicator considered the torture risk and found that his anal rape by two unknown men would be enough on at least a prima facie basis to sufficiently meet the severity requirements for torture.  However, he was not satisfied that the ill-treatment was inflicted or instigated by or with the consent or acquiescence of a public official or other person acting in an official capacity.  There is no evidence that those sub-agents were such persons; private citizens are outside the ambit of the definition of torture under section 37U(1) of Cap 115.  Therefore, the torture risk claim failed.

19.As far as the persecution risk is concerned, the adjudicator found that his claim did not amount to persecution for a convention reason and this claim must fail.

20.Counsel for the applicant accepted during the appeal hearing that the applicant did not claim protection under BOR 2.

21.To invoke protection under BOR 3, the applicant must establish two requirements and the standard of proof necessary to establish each of these requirements is very high.  The adjudicator found that his evidence did show the ill-treatment he suffered did physically and most likely mentally reach the minimum level of severity required.  However, he found that the applicant had failed to show any substantial grounds for believing that if he were refouled to Pakistan he would face a genuine and substantial risk of being subjected to torture or CIDTP. The BOR 3 risk claim failed.

22.The adjudicator did go on to consider internal relocation and the COI information. Pakistan is an enormous and very populated country.  Five sub-agents and a few students would not have the resources and commitment to scour the entire country to find the applicant.  Internal relocation is permissible under Pakistan law.  He is only 37 years old and has business and work experience.  Therefore, even if he was able to show a genuine and substantial risk of harm, which the adjudicator found he had not, that risk was confined to his local area where he had previously lived.  He can internally relocate without undue hardship in several big cities. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

23.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  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 is not made out.

24.He complains in his grounds that the adjudicator wrongly rejected his credibility but I am satisfied that the adjudicator gave ample reason that showed a careful analysis of the applicant’s evidence.  His finding of State protection was reasonable.

25.The adjudicator is accused of failing to sufficiently research and enquire into the COI conditions but I am satisfied that there has been objective research into ample and up-to-date material and his conclusion given was sufficient reason.

26.The applicant accuses the adjudicator of failing to give sufficient weight to his injuries received but in fact the adjudicator found that they did reach the minimum level of severity required to be defined as torture.

27.The applicant makes much of the fact he was unable to submit additional information with regard to a BOR 2 risk claim and therefore prejudiced but clearly his counsel during the appeal hearing conceded that he was on his own facts unable to rely on Article 2 and this ground.

28.I have considered the contents of his affirmation but in the main, it is repetition of his claim and a reiteration that he cannot internally relocate.  It is a repetition that his family members have recently been injured because of him.

29.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.  None of the grounds were reasonably arguable and there is no realistic prospect of success.  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