Younas Waqar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL366/2017

[2018] HKCFI 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 366 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 on 8 January 2016 only to be arrested by the police on the same day.  He lodged a non‑refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 30 November 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 21 April 2017.

2.The applicant filed a notice of application to apply for judicial review on 6 July 2017 and because the affirmation did not reveal proper grounds the application was set down for a hearing.  However, the applicant was absent, therefore I consider his application on the papers.

3.The basis of his claim is that if he were to return to Pakistan he would be harmed or even killed by his cousin, Zahid Khan, who is a member of the Pakistan Muslim League (N) (“PMLN”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

4.The applicant’s father jointly owned land with his brother.  When his father passed away, his share of the land passed to the applicant and his two brothers in equal shares.  The applicant and his brothers were poor whereas their uncle and his son called Zahid Khan were wealthy.  In 2014, the applicant’s uncle suggested the applicant and his cousin set up an equal partnership business together selling mobile phones in Rawalpindi.

5.The uncle was the chairman of the PMLN in Rawalpindi and Zahid was a member.  Later, Zahid’s brother-in-law became Chairman. They were politically connected and influential. Zahid had a number of properties and had good police connections.  He also had illegal businesses that involved stealing and illegally dealing in cars.  The applicant knew a lot about his cousins’ business, he even knew that he bribed police officers.

6.The cousins’ relationship went well until the applicant’s uncle died and Zahid turned nasty.  He felt his father was too generous with the applicant and laid claim to the applicant and his brothers land.  He also wanted to take over the mobile phone business.  That business was lucrative initially but then Zahid started to take money from the accounts which led to a conflict between the cousins.

7.Things came to head one month before the applicant came to Hong Kong.  Zahid refused to pay out the applicant for his share of the business.  Zahid and three men with guns arrived at the mobile phone shop and beat up the applicant and cut his leg.  When they left they threatened to kill him if he ever entered the shop again.  A doctor treated his thigh injury which took three months to recover and left him with a scar.  The applicant went to a friend’s home who discouraged him from reporting it to the police because they would only side with Zahid.  The next day the applicant insisted on returning to the shop.  But he met his cousin on the street who punched him and told him he had no business any more.  The applicant then returned to his friend’s home.

8.The next day he did go to the police station to file a report because he wanted a complaint on record and hoped he would find an honest police officer.  The officer refused to record a complaint and apparently informed his cousin that a report had been made.  After discussing the matter with his friend, the applicant decided he had to leave Pakistan and his friend made the arrangements for him.  Whilst staying with his friend, his brother told him that his cousin had been to his home looking for him and threatening to kill him.  The applicant left Pakistan on 7 January 2016.  After he left, his cousin continued to look for him and threatened his life.  The applicant says he will not be safe anywhere in Pakistan because of his cousin’s political connections.

9.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”).

10.The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He set out the four applicable grounds on which he considered the applicant’s claim.  He set out the applicant’s evidence and claim.  On the face of it, he accepted the applicant’s evidence as the truth.

11.What he did find was that on the applicant’s own facts and evidence there was not enough to establish that he was at risk from any enemy if refouled.  His evidence was speculative and presumptive where the claim that his cousin was politically influential and connected which made him dangerous.  The adjudicator considered it his duty to prove his cousin was in such a position to wield influence that could harm the applicant.  The fact he was not seriously injured before he left Pakistan by his cousin or others and the fact he was able to leave through Immigration without any trouble was an indication that his cousin’s influence with the police and PMLN was a bare assertion or purely speculative.  Without more, the adjudicator found there to be no future risk from his cousin.

12.Moreover, the applicant’s claim that his cousin intended to oust him from the land did not take into account that his brothers also had an equal share in the land yet there was no evidence they were threatened or frightened or at risk from Zahid.  Why would it only be the applicant who had to flee from Zahid?

13.The adjudicator found the applicant had failed to establish a claim under any ground. His problem stemmed from a personal money dispute.  There was no real risk that the applicant would face torture, CIDTP, a loss of life or a risk of persecution.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.The applicant filed an affirmation and included his non-refoulement claim form as well as some country of origin information.  He did list as his grounds the following;

(i) No reasonable basis for rejecting credibility;

(ii) a failure to consider the extended concept of state acquiescence;

(iii) a failure to consider country of origin information; and

(iv) no proper basis for considering internal relocation.

15.However, there were no particulars for the applicant’s grounds nor any substance to these grounds in this application.  The adjudicator did not reject the applicant’s claim on credibility.  He found on the facts established that there was no torture suffered in the past and no real risk of the applicant suffering it or persecution or death in the future.  Therefore, there was no need to consider internal relocation or state protection.

16.Although the adjudicator did not actually refer to the applicant’s physical injuries that he sustained on the one occasion that he referred to when confronted in the shop.  It is clear that on his own evidence the injuries he sustained were not serious; they did not reach a minimum level of severity to be defined as torture.

17.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of any material 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 13^th day of March 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