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

HCAL406/2017

[2018] HKCFI 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 406 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 male who claimed to have entered Hong Kong illegally by boat on 21 October 2009 only to be arrested on the same day by the police.  He lodged a non‑refoulement claim which was rejected by the Director of Immigration (“the Director”) on 14 August 2015 and 14 December 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 16 June 2017.  He filed a notice of application for leave to apply for judicial review on 14 July 2017 and requested an oral hearing which was set down on 9 November 2017.

2.The basis of his claim was that if he returned to Pakistan he would be harmed or killed by a terrorist group called Lashkare Taybe (“LT”).  Both the Director and the adjudicator of the TCAB set out his evidence and claim in full in their decisions therefore, I only intend to summarise it here.

3.The applicant was born in Pakistan, received eight years of education, is single and has never worked.  In 2002, the applicant was recruited in his mosque by LT members who convinced him the group helped poor people and protected Muslims.  He did not consult his parents before joining and there was no formal procedure to register as a member of the group.  He went to a training camp for about three weeks and was taught to use weapons and make bombs; he was brainwashed into believing he had to fight against India and America and therefore had to learn how to use weapons.

4.After training he went home because working for the group was voluntary.  In every mosque there was an LT leader who all LT members would report to.  The applicant was supposed to convince other people to join LT.  One day he told his family who were very angry and said LT was a terrorist group.  The applicant lied to his family and said he would leave LT so they would not kick him out of their home.  He secretly continued to work for LT from 2002 to 2007.

5.In 2007 his family wanted him to marry but he wanted to fight for his country and LT so his family disowned him.  He began military training again and there met a roommate who turned him against LT by convincing him they were a bad group.  He decided to leave the group but had to escape the training camp.  He managed to escape in a truck that passed by the training camp in early 2008.  He got out after about 30 minutes and took a bus to Mansera.  He had smuggled in a Rs.500 note before entering the camp so could pay for the bus fare.  The applicant managed to make it home but his father assaulted him in anger.  Eventually he forgave him and allowed him to come home.

6.One week after his return, the applicant was assaulted by the group that recruited him in the Mosque.  Thereafter the applicant tried to dissuade other friends from joining LT and warned them they were terrorists.  Because of what he told his friends and other people, the LT set out to exact revenge on him.  About one month after the first assault, the applicant was attacked by a group of eight to ten men including the first group, all were armed with weapons and he was seriously injured.  He was cut and stabbed.  His father who came to help him was also assaulted.  The applicant was threatened with his life.  The applicant and his father reported the attack to the police who told them to get a medical report if they wanted to file a case against the LT.  The applicant received stitches to his cuts and his wounds were cleaned.

7.The police later told the applicant and his father that they should not proceed with the complaint because LT people were dangerous and the police could not help them.  Even the doctor had written in the report that the stab wound was self-inflicted for some unknown reason even though the applicant had said all injuries were caused by the LT.  The police suggested the applicant should leave the country.  The police suggested the doctor was too scared to write that the LT had stabbed him.  The next day, they discovered the applicant’s father’s vehicle had been damaged beyond repair.

8.A week after this attack, the applicant was walking to the market when a man on a motorbike threw a small bomb at his face but it landed on his chest and exploded.  His chest and face was cut.  A doctor came to the house to clean his wounds and treat him.  The applicant did not report this to the police.  After this incident his family arranged for him to go to Lahore in August 2008 and initially planned to send him to Malaysia having obtained a Malaysian Visa but in the end the applicant went to Karachi and moved around between there and Lahore until he felt he could hide no longer in Pakistan from the LT and left for China on 9 October 2009.

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 hearing as a rehearing.  He set out the law and key legal principles for all four applicable grounds.  He then set out the applicant’s case as well as the Country of Origin (“COI”) information he found relevant.

11.He considered his evidence and made the following findings; the injuries he describes were not serious.  The LT members knew where he lived, which mosque he prayed in and the factory he worked in with his father therefore if they had really intended to inflict more serious wounds or even kill him they had every opportunity to do it yet did not.  The adjudicator could not understand why the applicant did not depart immediately for Malaysia having obtained a visa if he truly was in fear of his life.  The applicant then spent 14 months in Karachi and Lahore living peacefully before leaving for Mainland China with no evidence to support the allegation that LT people were looking for him there.  He even worked in a taxi rental company from February 2009 for five months without trouble or harassment.  There was no specific reason why he then had to depart for Mainland China in October 2009.

12.The adjudicator then assessed the applicant’s claim against the four applicable grounds.  As far as the torture risk was concerned, he considered the definition of torture as set out in section 37U(1) of the Immigration Ordinance.  From his own facts, the applicant has failed to satisfy the elements in the definition of torture.  The LT was a terrorist group; the pain or suffering inflicted on him could not have been inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.  He was not a target of the State.  The applicant failed to adduce evidence to show that there is a risk of his being subjected to torture if refouled.  His torture risk claim failed.

13.The adjudicator considered the COI information and found information that corroborated the applicant’s assertion that the police were corrupt, ineffective and inefficient.  He set it out in his decision.  However, he also found objective COI to show that reforms have been put in place and are ongoing in Pakistan to try and combat corruption in the police and improve the effectiveness in the force.  The government is taking action to protect the rights of its citizens; there has been improvements.  The adjudicator took the view that even if the police did not take the applicant’s complaints seriously the action of a rogue officer in a station cannot represent the State.  He found State protection available for the applicant if there was a risk if refouled.

14.As far as his risk of torture or CIDTP is concerned, the applicant had to prove the ill‑treatment which he would face if expelled attains what has been called a minimum level of severity and that he faces a genuine and substantial risk of being subjected to such mistreatment.  The adjudicator found that the injuries he had sustained in the past were not so severe that they attained that level of severity.  His BOR 3 risk claim failed.  The applicant indicated to the adjudicator that he had nothing to say about the Director’s decision to reject his BOR 2 risk claim.  The adjudicator found on his own facts he had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2, including his right to life being violated upon his refoulement to Pakistan; his BOR 2 risk claim failed.

15.The adjudicator found his fear of the men in his home area arose from a personal dispute and a revenge attack.  His fear of ill-treatment did not fall within the definition of persecution and was not on account of race, religion, nationality, membership of a particular social group or political opinion; namely a Refugee Convention reason.  Therefore, his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

16.In the applicant’s application form he names the TCAB only as the respondent but in his affirmation he names both the Director and the TCAB.  In my view, this 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.  There is no room for a judicial review of the Director’s decision.  I have considered his leave application against the decision of the TCAB only.

17.The affirmation actually contains no grounds. The applicant states that the LT is a well‑known terrorist group that he was once a member of but he managed to escape from their training camp.  He states they now want to kill him to make an example of him and strike terror within the people.  This will ensure no one else dares to leave the group.  In addition, the applicant knows the locations of their secret training camps and some other secrets so they want to kill him to protect their secrets.

18.This was not actually put forward as part of his claim before the Director or the adjudicator.  If this was indeed true, the LT had had plenty of opportunity to kill the applicant after he escaped from their training camp and made it home.

19.He did write to this court on 27 October 2017 and submit two grounds of judicial review.  He says in his non-refoulement claim form submitted in 2014 he requested a non-Muslim, Urdu speaking Indian interpreter.  However, for the appeal hearing, the TCAB provided him with a Pakistani interpreter.  The applicant’s concern was that the interpreter could be a Pakistani national and because the applicant was once involved with LT, they had a very large network.  Perhaps it reached as far as Hong Kong and that particular interpreter.  However, there is no request to change interpreters or any complaint in the decision to the adjudicator.  I see no merit in this ground.

20.He also submitted that there was a ground of procedural impropriety/unfairness when the adjudicator refused to adjourn the appeal hearing at the applicant’s request on the day of the hearing.  The applicant said on 16 February 2017 he went to the hospital and was given medicine that made his skin turned black and painful.  He said on the day of the hearing which was seven days later, he was in great discomfort and he could barely talk.  He requested an adjournment because he was not physically fit to be interviewed.  The adjudicator replied that it would not take long and the appeal would proceed.  The applicant said after the appeal hearing he rushed to the hospital to be treated.

21.I have had sight of a referral letter to the Department of dermatology that is dated 22 February 2017 and printed at 12:09pm, the same day as the appeal hearing which is from the Department of accident and emergency.  It says the applicant previously visited A&E for acne on his face and was prescribed some cream but the problem deteriorated with increased black pigmentation.  It says the applicant is worried and cannot go out due to cosmetic problems.  There is no mention of severe pain, discomfort and an inability to speak.  There is a second letter from a private doctor dated 15 March 2017 referring to a history of consultation for pimples, a prescription of cream and a reaction to it.

22.There is no mention in the decision of the adjudicator of an application for an adjournment because of medical reasons.  In any event, that referral letter does not indicate the applicant was in any way that day not physically fit to be interviewed or could barely talk.  I see no merit in this ground.

23.I have to consider with rigourous examination and anxious scrutiny the papers and decision of this application.  I have looked at the adjudicator’s analysis of the claim and evidence.  I do not find any 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.

24.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