Akhtar Muhammad Javed v. Director of Immigration

HCAL 265/2017

[2018] HKCFI 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 265 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is 47-year old Pakistani male who tried to enter Hong Kong from Mainland China on 15 July 2011, and when he was refused entry he lodged a claim for non-refoulement protection with the Immigration Department on the grounds that he would be harmed or killed by his creditor for failing to repay his loan and by his family members and neighbors in his home village for having converted from Islam to Christianity if he were to return to Pakistan.

2.He was born and raised in Bahawalpur, Punjab, Pakistan.  He is one of seven children of his parents who still live in Bahawalpur.  He is married with a son but has been separated from them with no knowledge of their present whereabouts.

3.In 1988 he went to work in a restaurant in Saudi Arabia but returned to Pakistan in 1989 and worked as a bus driver during which he had also lived in Lahore for six or seven years.  In 2004 he wanted to start his own business and therefore borrowed 1 million Rupees from a man known as MI who was a member of the political party Pakistan Muslim League with a loan agreement repayable at an annual interest of 300,000 Rupees and guaranteed by his cousin SA.

4.With the loan the applicant set up a business supplying raw cotton but only to MI and no one else, and in about 2006 when he was only able to repay 150,000 Rupees due to poor business, he promised MI to repay the balance in the coming year, failing which MI threatened to harm him or even to kidnap his family.

5.Subsequently the applicant defaulted with his payments and was arrested by police whom he said were sent by MI and was detained for five days during which he was beaten and tortured to disclose the whereabouts of his cousin SA who guaranteed the loan, and when he failed to do so as he did not know his whereabouts, he was tortured further until he yielded to MI’s demand to repay the outstanding loan within one month and was released, whereupon he was admitted into Lahore General Hospital where he remained for several days for treatments as to his injuries.

6.By mid-2009 when he still failed to repay the loan, his wife and his son as well as his sister were kidnapped by MI’s men, as a result the applicant sold his house for 1 million Rupees which he paid to MI who then released his wife and son but not his sister whom MI threatened to kill unless the applicant paid him a further sum of 1.5 million Rupees, and when he was unable to do so the applicant left with his wife and son for Lahore, while his sister remained under the detention of MI.

7.Several months later in about 2010, MI came to the applicant’s home in Lahore with some men and abducted him for two days during which he was beaten and tortured with electric shocks being administered to his head.  He was eventually released but with threats that he would be killed if he did not repay his loan within the next six months.

8.In order to earn for his living the applicant returned to work as a bus driver when one day in 2010 some armed men fired with guns at his bus from which he was able to escape but suspected that they were sent by MI and reported the incident to the police who however failed to do anything.  As a result he went into hiding for two months in Karachi before eventually returning to Lahore where he started to attend a church with his cousin SA with the intention to convert into Christianity after being persuaded to do so during the time when he was receiving their care after his torture by MI.     

9.However after his conversion into Christianity his family members and neighbors started to turn against him which caused him to fear that he might also be harmed or killed by them on top of the continuing threats from MI and his men, and when he later heard that his cousin SA who had also converted into a Christian was found murdered, he decided that he had to leave Pakistan for his safety which he did on 1 July 2011 when he went to China where he stayed for two weeks before entering Hong Kong on 15 July 2011 when he lodged his torture claim with the assistance of legal representation under Duty Lawyer Scheme.              

10.On 30 July 2015 his claim was rejected by the Director of Immigration (“the Director”) upon consideration on applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.In his assessment of the applicant’s claim, the Director took into account of all the information and materials provided by him including his written answers to questions raised by the Director about his case after he repeatedly failed to attend the interviews requested by the Department despite being legally represented throughout, as well as other supporting documents and materials such as the report of his psychiatric examination requested by his lawyer dated 6 November 2013 which stated that there were evidence to suggest that he was malingering and had intentionally exaggerated his problems, upon which the Director concluded that whatever dispute he had with MI was a private and localized matter with no evidence of any involvement by the State or Government, while his conversion into Christianity had not led to any actual ill-treatment or harm from his family members or neighbors and hence his fear was just based on his own speculation, that the availability of State protection would further lower or negate the level of risk, and that objective COI showed that internal relocation was available and reasonable in his circumstances for him to return to live and work safely in Pakistan other than his home town such as Karachi or Islamabad.

12.The applicant challenged that decision by lodging his appeal to the Torture Claims Appeal Board (“the Board”) on 12 August 2015, and while it was still being processed by the Board, by a Notice of Further Decision dated 2 December 2016 the Director again rejected the applicant’s claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) in the absence of any additional materials or facts from the applicant. 

13.On 31 March 2017 the applicant’s appeal was dismissed by the Board which found him to be “such an unreliable witness that no credence can be attached to any of the incidents he described”.  It is plain that the applicant’s credibility was the real issue before the Board, and it is noted that the Board had in fact conducted two oral hearings as the first one on 16 February 2017 which was fixed for half a day and when the applicant was still in the course of his evidence and being questioned by the Board, it was adjourned to 6 March 2017 when the applicant declined to give further evidence despite warning from the Board of the importance of his evidence to enable it to assess his credibility of his account, but he claimed to be tense and have a poor memory and that he might unintentionally give wrong information.

14.The Board also noted in its decision the following observations of the applicant by his doctor in his psychiatric report:

“ 73. Dr Chung described the interview he had had with the Appellant. The Appellant gave a number of remarkable answers to questions he was asked. He claimed for instance not to know how many people there were at that time in the same room. He claimed not to know the date, month or even the current year. He claimed not to know how many legs a horse had. He purported to be unable to do simple subtraction.

74. Dr Chung stated that the Appellant ‘was not reliable in providing history, inconsistent at times and at certain points, overly dramatic in response’. He said that the Appellant ‘was aspontaneous, gave short and vague replies, did not answer to the points and said he did not know or could not remember most of the time, even for simple, factual, non-emotionally laden questions. The Claimant’s social, educational and cultural background and medical condition cannot account for his extreme failure in answering questions during the interview.’

75. Dr Chung stated that features of the Appellant’s responses were consistent with factitious disorder or malingering, the key features of which ‘are intentional production or feigning of false or grossly exaggerated physical or psychological signs or symptoms and the motivation for the behavior is to assume the sick role.’

76.       He concluded ‘regarding my expert opinion as requested, some physical and psychiatric symptoms, such as headache, easy fatigability, insomnia, impaired concentration and low mood might be present in the Claimant, but the exact severity was unclear.  The physical and psychiatric symptoms were possibly associated with his past experiences and circumstances, e.g. history of physical injury and fear to face his debts in Pakistan. The Claimant has no significant features suggestive of political orreligious torture.  Mr. Akhtar reporting being beaten twice in 2006 and 2009,but not more frequently, suggesting that he was not monitored and persecuted by the Pakistan police.  His involvement with the police, if it is true, was more likely due to his debts and unrelated to political or religious issues.  His fear of returning to his home country can be explained by his unsettled debts.  There are evidence to suggest that the Claimant has intentional exaggeration of his problems and in psychiatric terms, malingering.’         

15.The Board then went on to review all the other materials and information carefully and set out in its detailed decision from paragraphs 79 to 88 numerous inconsistencies and implausibilities in the applicant’s accounts to find that he was a highly unreliable witness even if the Board had not had the benefit of Dr Chung’s report, and concluded that by reasons of his lack of credibility alone that the applicant has failed to show that there is real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear, or any harm warranting non-refoulement protection, if he returns to Pakistan, which the Board said was decisive of his appeal.

16.On 1 June 2017 the applicant filed his application for leave to apply for judicial review of the decisions of both the Director and the Board, and in his supporting affirmation he simply stated:

“ The decision of the adjudicator is flawed. He did not give any weight to my claim. He did not take into account the severity of the situation in Pakistan. It’s bad for religious minorities but the persecution of the converts is well documented as well.”

17.There is simply no merits at all in this submission of the applicant.  The Adjudicator has heard him in evidence during the first oral hearing and at the second hearing he declined for no good reasons to give any further evidence or to answer any further questions from the Adjudicator notwithstanding being warned of the importance for him to do so, and having also carefully considered and examined all the documents and materials submitted by the applicant, some of which were found to be highly suspicious, the Adjudicator was in my judgment certainly entitled to find him an unreliable witness and that by reason of his lack of credibility to conclude that the applicant has failed to show that there is any real risk or chance or substantial grounds for believing that he will suffer the harm he claims to have, or any harm warranting non-refoulement protection if he were to return to Pakistan, and judging from the fact that he had spent a considerable part of his adult life living and working away from his home area, and in the absence of any specifics or particulars submitted by him in this application, I am unable to see any error in law or procedural unfairness on the part of either the Director or the Board to conclude on objective COI that internal relocation is available and reasonable in the applicant’s circumstances for him to return to live and work safely in Pakistan elsewhere from his home area.

18.In the premises I do not see any ground of the applicant which shows any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of his claim.  I am therefore not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.

Dated the 8th 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