Nadeem Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL298/2017

[2018] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 298 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 entered Hong Kong illegally by boat in September 2013 and was arrested by the Hong Kong police for illegally remaining in Hong Kong on 2 January 2014.  After he was arrested he lodged a non-refoulement protection claim.  His claim was rejected by the Director of Immigration (“the Director”) on 7 January 2016 and 12 December 2016.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 26 May 2017.  The applicant filed a notice of application for leave to apply for judicial review on 15 June 2017.  I now consider his application on the papers.

2.The basis of the applicant’s claim is that if he were to return to Pakistan he would be ill‑treated by a former Nazim and his people which included his son as well as the Pakistan People’s Party (“PPP”) because they bore a grudge against him for supporting the Pakistan Muslim League (N) (“PML (N)”) during an election campaign.  The Director in particular set out the applicant’s claim and evidence in full in his decision therefore I only intend to summarise it here.

3.The applicant’s family were supporters of the PML (N).  During a local election in Rawalpindi district, the applicant, his father, his brother Javid and his cousin Aamir argued with the Nazim and his son who belonged to the PPP and thereafter they bore a grudge; particularly against Aamir.  The applicant knew that the Nazim and his son lived in Tench Bhatta, Rawalpindi city and he held the post since 2003.  Instead of helping ordinary people as he was elected to do, he was actually more of a gangster.

4.In 2003, Javid and Aamir were out when a vehicle Javid recognised as belonging to the Nazim drove up to them and fired bullets at Aamir’s vehicle.  Aamir was the only one hit and he was hit in the neck.  He was clearly the target and he later died in hospital.  Despite the family reporting the Nazim’s car number plate to the police, no one was arrested.  The police were very reluctant to even register the complaint.

5.After his cousin’s death, the applicant and his family became the target for the Nazim and his son.  There were many incidents, so many that the applicant could not recall them all; but there were about 200 to 300 fist fights involving the applicant until he left Pakistan in 2013.  Whenever the applicant or his brothers came across the Nazim, his son, nephews or workers who were in groups of four or five then a fight would start and even gunshots would be fired in the air.  On a few occasions, the applicant was badly injured and admitted into hospital for one to two days.  He once sustained an injury that took two to three months to recover.  He did not report these fights to the police since there were too many fights to report.

6.About six months after his cousin was shot dead, two vehicles and a motorbike were stolen from his father.  The applicant suspected it was the Nazim and his people that stole it but the police refused to register the complaint.  About one year after his cousin was shot dead, the applicant’s father’s furniture shop was robbed and vandalised.  Again the police refused to investigate and take action.

7.When the fist fighting became particularly bad, the applicant would sometimes leave home and stay with a relative some distance away to get away from the Nazim, his son and his people.  Sometimes he would stay away for several months at a time and when he did, he did not encounter any problems or harassment.  About six weeks before the applicant left Pakistan in September 2013, the Nazim repeatedly verbally threatened to shoot him like his cousin was shot.  The applicant’s father advised him to leave Pakistan in case the threat was serious.  After the applicant left Pakistan, his brothers have told him that they continue to be disturbed by the Nazim and his people on occasion.

8.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”).

9.The adjudicator treated the appeal hearing as a rehearing.  He correctly set out the law and key legal principles for all four applicable grounds.  He considered the applicant’s evidence and claim and assessed his credibility.  He found the applicant’s evidence implausible, incredible and so vague for material matters that he was sure he had invented his claim.  He did not find the applicant a genuine claimant.

10.The adjudicator set out in his decision what in the applicant’s evidence he found to be implausible and unreliable.  For example, the applicant describes the Nazim and his son as his enemies for many many years yet is unable to remember their names.  In previous interviews he had been asked where the Nazim held his position as the Nazim and he could not recall.  Nor could he recall when he held this position.

11.The adjudicator found it very telling that five days after the applicant was arrested in January 2014 he claimed to be a member of the Noon League Party.  He fled to Hong Kong because his brother had been killed by the People’s Party and he himself had been beaten and they were still looking for him.  This was an entirely different claim and after that interview, there has been no mention again of a brother being murdered by a political party.  The adjudicator does not accept the explanation that this inconsistency can be explained by a failure of memory.  He suspects that the applicant forgot what he said January 2014 when he completed his Non-refoulement Claim Form 18 months later.  This cast grave doubt on his credibility.

12.The fact he did not seek out any authorities to claim protection when he arrived in Hong Kong also affects his credibility.  The fact he only claimed protection after he was arrested affects his credibility and can be taken into account by the adjudicator.  The adjudicator did not believe the applicant came to Hong Kong in order to escape from the life‑threatening environment created by a Nazim and his son.

13.Many of the allegations were bare assertions that the applicant could have attempted to support with documentation such as a death certificate for his cousin or police reports for the thefts of vehicles or robbery of his father’s shop.  The applicant vaguely said his father tried to report the robbery but could give no details of how he tried.  The applicant said the shooting of his cousin was in the newspapers but he had no cuttings to show.

14.Despite the adjudicator’s finding that the applicant was not credible and not a genuine claimant, he went on to assess the claim against the four applicable grounds on the applicant’s own facts.  The adjudicator considered the definition of torture under section 37U(1) of the Immigration Ordinance Cap 115 and found that the applicant had not suffered any severe pain or suffering, be it physical or mental; what he suffered fell short of it being torture.  A Nazim should help ordinary people but according to the applicant he was more of a gangster and could not be described as a public official.  On the applicant’s facts, he would not be putting him forward as acting in a public or official capacity.

15.The adjudicator concluded that even if there was severe pain or suffering, it was not inflicted by, or at the instigation of, or with the consent of a public official or other person acting in an official capacity which the definition required.  In any event, the Nazim was no longer a Nazim by the time the applicant left Pakistan.  He was just an ordinary man now.  The adjudicator found that the applicant was not at any real or personal risk of torture in the future and the torture risk claim failed.

16.The adjudicator did consider State protection and said he considered Country of Origin material that supported the applicant’s allegations the police were corrupt.  However, he said there was information to show there has been improvement and gave an example.  He found there to be State protection available to the applicant.  He also considered the legislative assembly in Rawalpindi city in the Punjab province and found that since the general election in 2013; of the 371 seats in the assembly, the PML (N) hold 312 seats and the PPP hold only eight seats.  He found the applicant’s suggestion that the PPP have power over and control the police in their district instead of the PML (N) is very hard to believe.

17.The adjudicator considered the applicant’s fear and did not believe it arose from race, religion, nationality, membership of a particular social group or even political opinion.  It arose because of grudges between supporters of two opposing political parties but it had nothing to do with their political opinions; there is a difference.  The adjudicator also found that his fear was not well-founded because the risk of harm if refouled was extremely low.  The persecution risk claim failed.

18.As far as the risk of torture or CIDTP was concerned, the adjudicator found that the ill‑treatment the applicant had suffered did not attain the minimum level of severity to invoke the protection of BOR 3 and he did not find evidence of a substantial future risk of torture facing him if he returned home to Pakistan.  The BOR 3 risk claim failed.  There was also no evidence that the applicant’s life was at risk from the government; he did not establish there was a personal and real risk to his absolute and non-derogable right under BOR 2 being violated upon his return to Pakistan.  The BOR 2 risk claim failed.

19.He also considered internal relocation and considered the size of Pakistan as well as the population. He believed that the applicant being an able-bodied man could relocate internally without undue hardship if he really had any risk in his home area.

Leave to apply for judicial review

20.In this application, the applicant has named the Director as the respondent not the TCAB but in his affirmation he has attached the TCAB decision as the decision he wishes to judicial review.  I am sure it is his intention to seek leave to judicial review the decision of the TCAB.

21.In his affirmation the applicant does not set out any grounds.  He says that relocation is impossible because the fight against terrorism touches new high.  He says State protection is non-existent and the persecution risk is high.  He says the adjudicator has failed miserably to consider all the evidence he provided.

22.The only evidence the applicant provided, other than his oral evidence, were some photocopies of certain photographs which the applicant said depicted bullet holes in the vehicle which his cousin was in when he was shot dead.  This is confirmed in the Director’s decision as well as the adjudicator’s decision.

23.The adjudicator considered all his evidence, including his oral evidence and compared it; he found it inconsistent and implausible.  He gave enough reasons for his conclusion.

24.In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.  To do this, the court will consider the decision with rigourous examination and anxious scrutiny.

25.I do not find any error of law by the adjudicator nor do I see any 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.  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 23^rd 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