As v. Director of Immigration

HCAL 274/2017

[2018] HKCFI 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 274 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 Marlene Ng:

The applicant shall be named as “AS” instead of his full name in these proceedings.

Leave to apply for judicial review be dismissed with no order as to costs.

Observations for the Applicant:

1.AS is a Pakistani national, and claimed to have arrived in Hong Kong on 13 November 2012. He claimed to have departed from Pakistan on 9 November 2012 and arrived at Guangzhou, China the following day. On 13 November 2012, AS went to Shenzhen and took a boat to Hong Kong illegally on the same day. On 14 November 2012, AS was referred to the Immigration Department (“ImmD”). On 15 November 2012, AS lodged a non-refoulement claim with the ImmD. He was released on recognizance on 24 December 2012. AS submitted a non-refoulement claim form (“NCF”) dated 29 May 2015, and he attended screening interviews on 22 September, 9 November and 18 November 2015 (“1^st, 2^nd and 3^rd Interviews”, collectively “Interviews”). At that stage, AS was assisted by duty lawyer from the Duty Lawyer Service (“DLS”). He was assessed on the applicable grounds of torture risk, BOR3 risk and persecution risk (as referred to in paragraph 22 below). On 8 January 2016, the Director of Immigration (“DOI”) dismissed AS’ claim (“DOI Decision”). By letter dated 4 November 2016, DOI gave AS an opportunity to provide further additional materials or facts on other absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”), particularly under article 2 of the Hong Kong Bill of Rights (“BOR”) (ie BOR2 risk as referred to in paragraph 22 below). The DOI did not receive any reply from AS. By letter dated 22 November 2016 to AS, the DOI concluded AS failed to establish a personal and real BOR2 risk (as referred to in paragraph 22 below) if he was to return to Pakistan (“DOI Further Decision”).

2.On 18 January 2016, AS appealed to the Torture Claims Appeal Board (“TCAB”). By that time, he was no longer legally represented. The hearing before the TCAB adjudicator (“Adjudicator”) took place on 25 November 2016. The DOI was excused from the Hearing. AS’ appeal was dismissed by the Adjudicator on 2 June 2017 (“Adjudicator Decision”).

Intended grounds of review

3.On 7 June 2017, AS filed Notice of Application for Leave to Apply for Judicial Review (“Form 86”) against the Adjudicator Decision for procedural unfairness, irrationality and error of law in that:

(a)   procedural unfairness in respect of procedure adopted by the Adjudicator in arriving at the Adjudicator Decision – the Adjudicator failed to carry out sufficient research and inquiry into country of origin information (“COI”) conditions which had the material consequence of a failure to have regard to relevant and up-to-date COI research, which was of wide and overall general reference, or focusing on the circumstances, attributes and beliefs of a person fitting AS’ profile, such that the Adjudicator could not possibly have arrived at a fair decision in dismissing AS’ case on all non-refoulement grounds;

(b)   irrationality – (i) the Adjudicator failed to take into account and consequently failed to put any weight or put sufficient weight on highly relevant COI content he cited in the Adjudicator Decision when such highly relevant information was overwhelmingly in AS’ favour and supportive of his non-refoulement claim (eg overwhelming evidence of violence towards minorities), and (ii) the Adjudicator picked, took into account and put full weight on COI of little or no relevance such that the Adjudicator Decision that dismissed AS’ case on all non-refoulement grounds was unreasonable;

(c)   error of law – the approach of the Adjudicator to COI was selective and failed to address the negative aspects, especially about corrupt Pakistani police, that supported AS’ claim;

(d)   irrationality – the Adjudicator failed to evaluate and make finding of fact as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violation of human rights such that the Adjudicator Decision on all non-refoulement grounds was unreasonable;

(e)   error in law – the Adjudicator failed to consider and assess whether state protection existed under BOR3 (as referred to in paragraph 22 below);

(f)    error in law – “[the Adjudicator] just mentioned in paragraph 43 of [the Adjudicator Decision] that he do not think that [AS] heard (or would have been allowed to hear) in detail the telephone conversations of Niraj. Office mentions it is a case of merely wild whirling. Officer did not realize that I was his wife and living in the same home and it is possible that I can hear sometimes while they were talking in the phone but officer just ignored and mentioned it is my mere speculation. This is totally unfair”;

(g)   unfairness – “Officers seems to be rude and seems had decided to refused [AS’] case without accept any of [AS’] allegation. Officer also accepted in a paragraph that [AS] was assaulted and tortured but most of the foreseen facts were ignored. Officer accept the assaults and threat of death but he decided to give decision that it was of act anger and spite so it seems officer has decided to refuse [AS’] claim without any weight of refuse facts but just rely on his own speculations”;

(h)   unfairness – (i) the decision-maker failed to rely on AS’ additional facts/grounds and dismissed his BOR2 (as referred to in paragraph 22 below) application without interview or consideration of his further facts/grounds, and (ii) AS was not given any chance to submit any additional facts according to his BOR2 claim as he had never received any letter form ImmD by which they invited him to submit additional facts regarding his BOR2 (as referred to in paragraph 22 below) non-refoulement claim and DOI Further Decision;

(i)     unfairness – the Adjudicator Decision betrayed a biased and formula approach that failed to fairly assess the danger posed to AS’ life and that was calculated to reject his non-refoulement claim.

4.On the same day, AS filed his affirmation in support of the Form 86 (“AS Aff”). In the AS Aff, AS claimed he did not have legal advice when he prepared the Form 86, and reserved the right to submit additional and/or amended grounds and documents in support of the Form 86 as he was then seeking legal representation. On 16 October 2017, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid in respect of AS’ application for legal aid. On 1 November 2017, the DLA filed a Memorandum of Notification that a Party has been Refused Legal Aid in relation to AS’ application. No application was made to submit additional and/or amended grounds and documents in support of Form 86.

AS’ claim

5.AS was born in Hazoor Pur Village, Sargodha District, Punjab, Pakistan (“Village”) where he lived with his parents and a younger brother who suffered from mental illness. AS received formal education up to class 10 from 1986 to 1996. In 1996, he enrolled at the Faculty of Arts of the Government Degree College Bhera in Sargodha. When he was at college, AS also helped out at his father’s cattle farm. In 1998, AS left college without completing his course. In March/April 2001, AS joined the Pakistan army, but left after 3 years in May/June 2003.

6.AS and his family were supporters of the Pakistan People Party (“PPP”) that opposed the government, and they casted their votes for PPP during elections. AS and his family were Sunni Muslims, but some of AS’ maternal relatives converted to become Ahmadi Muslims. AS did not know much about Ahmadi Muslims, but had no contention against such religious belief. When AS was at college in Bhera in 1997-1998, he befriended some Ahmadi Muslim boys who were his mother’s distant relatives. Other students (some of whom AS believed had dealings in illegal drug activities in the college) often teased/bullied those boys for their religious beliefs, and AS would stop and report such bullying behavior to the principal who would only give verbal warnings.

7.AS explained when he was in college, Baha-Ul-Haq (“Baha”) was the head of the Muslim Students Federation (“MSF”) at district level, which was the largest branch of the Muslim community in AS’ area. In the Interviews, AS described MSF as the student wing of the Pakistan Muslim League (Nawaz) (“PMLN”). AS believed PMLN made use of student organisations for fights and illegal drug activities that caused disturbances, and helped students cheat during examinations. AS claimed when he was in college he just heard about Therik-i-Taliban Pakistan (“TTP”), but in the Interviews he alleged that in 2010 Muhammad Ameer (student at AS’ college, “Ameer”) confirmed his suspicion Baha also ran a religious school known as Bhera Darul Aloom that provided Islamic warrior training to students for TTP.

8.Baha was the younger brother of Amin-Ul-Hasanat (“Amin”) who belonged to PMLN (then ruling party in Pakistan headed by Prime Minister Nawaz Sharif) and who was the Minister of the National Assembly (“NA”) of Bhera, Punjab. When asked during the Interviews why (according to online publication) Amin’s name did not appear among the list of members of the NA for the constituencies of Sargodha in 1997, AS said he was not sure but thought Amin was elected in 1997/1998 and his term was over in 1999.

9.AS claimed Baha also ran a drug syndicate using college students (especially those from AS’ college) to sell drugs and to handle drug selling, illegal killing, unlawful occupation of properties and other illegal activities for Baha, and Ameer would recruit college students to carry out such illegal activities for Baha. AS claimed he had actually seen Ameer sell drugs to students at the college several times.

10.AS told the principal about such illegal activities of Ameer and other student

inside the college. But the principal, who was actually scared of them, just verbally warned those students against engaging in illegal activities. AS then lodged 3-4 police reports against Baha, Ameer and others for their illegal drug dealings, but the police failed to do anything about it.

11.AS asked some students to sign written report to the police that Ameer was bullying students and disturbing their studies. When Ameer continued his illegal activities, AS made a second police report giving details of the illegal activities of Baha, Ameer and their gang. AS and some other students (including the Ahmadi students) went to the police station. AS claimed that as a result of his complaints to the police and the police’s subsequent inquiry, Ameer and his gang hated AS and his Ahmadi student friends whom they thought were non-Muslims. AS claimed the police told Baha about this and asked him what Ameer was doing in the college. AS claimed that as a result of AS’ complaints, a group of boys in the college became hostile to him, and Ameer and his gang started to create problems for him. They often threatened to harm AS and the Ahmadi students who eventually left the college.

12.AS claimed that subsequently there were inter alia 9 incidents:

(a)   First incident (threats by Ameer) – AS claimed that 1 day before the English examination, Ameer and others took him outside the college campus, showed him a gun and threatened to kill him if he did not stop acting against them. They even invited AS to join them, and said many students wanted to join them to have free food, accommodation and college degree. AS told his parents about such threat and his reports to the police. His parents told him not to return to college or sit for the examination. So AS left the college in 1998.

(b)   Second incident (shooting AS) – AS wanted to complete his college degree by private study. At about 6:00pm on 20 November 1999 AS was studying with 2 friends in the guestroom of AS’ house with the door left open when Ameer passed by. Ameer overheard AS talking/laughing with his friends, and was furious because he thought they were laughing and using foul language at him. He did not accept their explanation that they were just laughing on their own, and he started to shout at AS and his friends in bad language. The altercation turned into heated argument/fight. Eventually Ameer’s father and AS’ father separated them to end the fight. AS’ friends, Ameer and Ameer’s father left AS’ house. After a while, Ameer and his brother Muhammad Nazir climbed to the rooftop of AS’ house to fire 2 shots at AS with a 12-bore caliber gun, but they missed and AS managed to escape unscathed. The incident attracted the attention of neighbours who gathered around AS’ house. Later, Ameer’s father went to the rooftop to take his sons home.

On the following day (21 November 1999), AS’ father and maternal uncle Malik Niamutullah lodged a first information report (“FIR”) at Miani police station. The police stated in the FIR they were on patrol when the incidents happened, but AS claimed it was not true. Ameer with Baha’s support was given a 14-day pre-arrest interim bail to protect him from police arrest/ detention, and during such period AS stayed at home in fear that Ameer would

attack him again. Ameer’s bail was revoked after 14 days, and he was remanded in prison. As far as AS knew, Ameer was sentenced to about 3 months’ imprisonment. AS claimed Baha could have arranged for Ameer’s early release but AS did not know why Baha did not so arrange.

AS said since he lived in a small Village, he needed to know Baha’s activities in order to protect himself. Soon after Ameer’s arrest, AS learnt that Baha promoted Altaf Hussain (a member of PMLN and local chairman of the Union Council of Hazoor Pur whose house was 20m away from AS’ home, “Altaf”) to replace Ameer. Altaf had 2 subordinates/supporters Saif Ullah (“Saif”) and Zafar Iqbal (“Zafar”) who did illegal work for him, but did not work in the Union Council.

(c)   Further threats – AS said a few days later Altaf, Saif and Zafar started to threaten AS’ family members. Whenever Saif and Zafar passed by the cattle farm where AS’ father and paternal uncle Muhammad Bakhsh (“Uncle Bakhsh”) used to work, they would threaten AS’ father and uncle by saying words like “Your son had escaped on previous occasion but he would not be able to escape again”.

(d)   Fleeing in/about 2000 – After Ameer was released from prison, AS feared Ameer would come to his home to look for, seek revenge on and cause harm to him. So in March/April 2000, AS started moving around the houses of 8-10 relatives in the Village. About a month later, AS decided to stay at the house of his maternal grandmother Rasoolan Begum (where his maternal uncle Liaqat Ali Naseer (“Uncle Liaqat”) also lived) as it was rumored Altaf would burn the houses of AS’ relatives in order to look for him. AS believed Altaf might have learned from visitors that he was moving among his relatives’ houses.

AS said the house of AS’ maternal grandmother was a safe place. It was a big old-style house on the other side of the Village about 10 minutes’ away on foot, and it had a high-rise boundary wall and open area around it. AS claimed Saif and Zafar approached the open area many times to keep watch over the house, but they did not come close. AS did not go out during the 7-8 months he stayed there.

(e)   Third incident (AS accused of kidnapping in December 2000) – AS claimed that on 1 December 2000 Altaf’s 16 or 17 years old daughter went missing. Altaf, his family, relatives and subordinates searched for her in vain. On the following night, a group of persons went to the house of AS’ parents, and demanded them to hand over AS whom they accused of kidnapping Altaf’s daughter. AS’ parents were beaten up when they refused. AS’ family sent a young boy to the house of AS’ maternal grandmother to tip off AS who hid in the fields the whole night. Soon afterwards, a group of persons came to the house of AS’ maternal grandmother to look for AS, but they could not find him.

In the Interviews, AS claimed he knew about the matter of Altaf’s daughter, but denied he had anything to do with her. He did not know what happened

and/or why she left. Altaf did not lodge any formal police report against AS for kidnapping his daughter. AS claimed they just wanted people’s sympathy so they could even carry out honour killing. So on the following day AS planned to seek refuge with Uncle Liaqat’s friend in Bhakkar City, Punjab. Uncle Liaqat drove AS to Sargodha on a 2-hour journey by motorbike. They then took a 4-hour bus journey to Bhakkar City. AS went into hiding and stayed there for 3-4 months. He did not lodge any police report as the police would have contacted the Miani police station to get information about him. AS claimed he could only report to or get assistance “from his concerned police station only”.

In the Interviews, AS also said “there was no FIR regarding the threats he received but only application”. AS’ family (including his father and cousin) sent many letters to the police about this, and AS’ grandmother went to the police station to submit letters but nothing happened. AS’ family submitted the letters to the police (without retaining copies) before AS fled the Village. There were “so many applications”, but AS only submitted some of them as supporting documents.

(f)    Joining the army in 2001 – AS contacted a fellow Ahmadi student whose uncle worked as a major in the Pakistan Army, and the major suggested to AS to join the army. AS agreed, and was brought to Sargodha City. In/about March/April 2001, AS was recruited as a soldier, and he went to Quetta for training.

AS’ father was upset with AS as he caused trouble to the family, but AS kept in contact with his mother and Uncle Liaqat by telephone/letters. Altaf and his gang put pressure on AS’ family to disclose his whereabouts. When AS’ parents said they had no idea, they threatened his family that if they did not disclose his whereabouts they would “face the consequences”.

To avoid threats from his enemies, AS told the gate guard at the Army Centre where he was stationed that he did not want to receive any visit from strangers. AS found out from the visitor record book that Altaf’s cousin Ghulam Ahmed attempted to visit him, but was not permitted entry. AS believed the army had sent his character certificate to Miani police station for verification, and the police told Altaf his whereabouts.

(g)   Fourth incident (shooting at Uncle Liaqat) – In/about December 2001, Altaf ordered Saif and Zafar to shoot Uncle Liaqat with firearms, but they missed and struck a schoolteacher in the chest. The victim’s brother told Uncle Liaqat they had lodged a police report. AS believed Altaf bribed the police, paid some compensation to the victim’s family, and threatened them to withdraw the case. Eventually, the police suspended legal action against Altaf. Uncle Liaqat did not lodge any police report as he was not injured. AS claimed the police would not have believed Uncle Liaqat without evidence, but AS believed Uncle Liaqat was attacked because (i) he supported AS who used to stay at his house and (ii) helped AS to flee from the Village. After this incident, Uncle Liaqat went into hiding by staying at home.

AS’ grandmother sent 2 complaint letters to the SSP (senior superintendent police) of Sargodha against Altaf, Zafar and other culprits for the aforesaid attacks.  But Altaf was released on bail after being remanded for 1 month, and no legal action was taken against him since then. Although Zafar (who injured AS’ father) was wanted by the police, he was not arrested even though he hanged around the Village.

In the meantime, after 9-10 months of training in Quetta, AS was sent to Bahawalpur where he was stationed for 6-7 months until early 2002. While AS stayed in Bahawalpur, Uncle Liaqat talked to Nadeem Afzal Chan (a PPP member, “Nadeem”) and asked him to help AS. In March/April 2002, AS told Nadeem about the threats by Baha and his subordinates against him, and hoped Nadeem would get him out of such trouble. But AS believed Nadeem used this information against Amin with a view to weaken his party, so Baha thought AS had given something to Nadeem (when actually AS had not), and Baha became angry with and was even more against AS.

(h)   Fifth incident (assault on AS’ father) – At about 2:45pm on 25 May 2002, AS’ father was sitting with his 2 brothers Uncle Bakhsh and Uncle Muhammad Ishaq at his cattle farm. Suddenly, Zafar armed with a 12-bore calibre gun came from the nearby railway station to the cattle farm shouting at AS’ father that “I will not leave you alive today”, and fired at him hitting him at his right upper arm. AS’ father fled from the scene and escaped. On hearing the gunshot and shouting, many people (including AS’ distant relative Naseer Ahmed and other neighbours) came over, but Zafar had fled the scene.

AS’ father went to make report at Miani police station, but AS claimed the police always acted in Zafar’s/Altaf’s favour, and the police officer falsified the report to state that Zafar at Altaf’s behest attacked AS’ father because AS had kidnapped his daughter. AS’ father sought medical treatment from the Civil Hospital Miani and was then transferred to the Civil Hospital Sargodha for better treatment. In the Interviews, AS claimed that notwithstanding the contents of the FIR he had no relationship with Altaf’s daughter. AS’ family made application against such incorrect FIR to state Zafar actually shot AS’ father, but AS believed nothing was done because Altaf influenced the police.

(i)    Sixth incident (threats against AS’ family) – In the late evening on 20 July 2002, AS’ parents together with other female relatives were on the way home when Altaf, his cousin Mansha and Saif shot at them with firearms, but fortunately no one was injured. At 5:00am on the following day, there was heavy firing at the house of AS’ grandmother with bullet marks scattered on the walls, but again no one got injured. AS did not know the details of these attempted attacks, but Uncle Liaqat told him about these incidents when he visited AS sometime in 2002. AS believed that as he did not receive visitors at the Army Centre and he had not returned home for the past year, his enemies (who might have been getting impatient) might

have thought he would visit his family after the attacks on his family/relatives. At the time AS was stationed at the border and unable to contact anyone because for a period of time the border situation was quite tense with expectation that war would break out.  AS had no idea whether his enemies were trying to locate him in Bahawalpur.

At the end of 2002 or early 2003, AS was transferred to the military base in Karachi to work as a driver in the Electrical and Mechanical Engineering Unit.

(j)    Seventh incident – AS claimed that on 25 May 2003 Zafar at Altaf’s behest went into the house of AS’ father and attacked AS’ father by firing gun at him. AS’ father was injured, and lodged a report with Miani police station. Later, AS’ grandmother also sent a complaint letter to Miani police station. But Zafar was not arrested for the attacks on AS’ father and Uncle Liaqat.

(k)  Eighth incident (abduction) – AS had his first holiday after 3 years’ service with the army, and he was to report duty after 2 months. In May/June 2004, AS left the Army Centre to visit his maternal uncle Tahir Naseer (“Uncle Tahir”) who lived in Malir area, Karachi. AS stayed with Uncle Tahir for about 10 days, and then visited another maternal uncle Tariq Naseer (“Uncle Tariq”) who lived in Hub area, Karachi, about 3 hours' bus journey away from Malir.

AS claimed it was already evening when he reached Hub. After he alighted from the bus and went on his way, he was hit on the head from behind, so he could not see the weapon or his assailant's face. AS fell down unconscious. AS believed he had been tracked for days because he did not tell anyone about his plan to visit Uncle Tariq.

When AS regained consciousness, he realised he was blindfolded with hands tied behind his back. After a long while someone removed AS’ blindfold, and he discovered he was in a room inside an old house with 3-4 unknown men. They telephoned to tell AS’ parents and Uncle Tahir (AS did not know how they got their telephone numbers) that they had seized AS, and threatened them not to inform the army about the abduction, but AS’ parents and uncle disclaimed any connection with AS (in order to avoid the threats).

When the unknown men asked for his name, AS gave another name, but they already had information about him, and started to beat him with wooden sticks, punched/ kicked him all over his body, and later whipped him with electric cable until he lost consciousness. When AS regained consciousness, the unknown men had left. Later, an old lady (whom AS thought was a nurse, “Lady”) came to the room to give AS water, stitch his head wound, and wash dried blood off his face. 

AS claimed he was kept in detention for about 7-8 months with 3 men on guard outside his room, and he was tortured more than 6 times during that period by 3-6 unknown men who usually beat him with wooden sticks, and

punched, kicked and slapped him all over his body. AS could not recall exactly what injuries/treatments he received for each torture, but every time he sustained injuries all over the body (eg swellings, bruises, etc).  The Lady gave him treatment, and supplied him with food (eg rice with lentils and bread with curry) and water once a day.

After some days the unknown men turned up, and questioned AS about evidence/information he had given to Nadeem about Baha. AS told them (which they did not believe) he did not give Nadeem any information, and they beat him intermittently with wooden sticks and kicked/slapped him all over the body when they were dissatisfied with his answers. AS had no idea how long the torture lasted.

AS claimed that on 1 occasion they tied his arms to a chair on each side and made to stretch out like a cross shape before they questioned him. They burnt AS’ left upper arm with lit cigarettes from time to time, which was very painful, and by the end of the torture his upper left arm had a big burnt area (which became a visible permanent scar). Later, when such area began to heal, AS noticed they had made a triangle-shaped burnt mark on his left upper arm.

AS claimed that on another occasion he was severely tortured and was asked about information he had about the drug dealer in his area. AS replied the main drug dealer in his area was Baha, which made the unknown men angry and they beat him up. Before they left, 1 of them fired a shot that scrapped the skin of AS’ right calf which caused bleeding but no injury to the bones. Later, the Lady cleaned/bandaged the wound, which left a permanent and visible mark on his calf.

The majority of the unknown men spoke Pushto which AS did not understand, but 1 of them spoke Punjabi. AS guessed from their conversation they were from TTP though they did not identify themselves as such. AS claimed it seemed there was someone who gave instructions to the unknown men because on 1 occasion the one who spoke Punjabi told others to stop torturing AS until they received further instructions from Mr Pir (Syed or Shah) who had gone abroad due to some problems. AS believed the unknown men did not have direct contact with Baha and had to go through middlemen who passed on Baha’s messages. Later in 2011, AS learnt that Mr Pir was actually Baha, who had taken his sick daughter abroad for treatment.

About 4-5 days later, the unknown men resumed questioning AS. On 1 occasion they placed an electronic device on AS’ forehead, and gave him electric shock by connecting such device to electrical wires. AS claimed even a split second of electricity passing through his body would cause extreme pain. AS claimed he was so tortured 5-6 times. The unknown men would question him intermittently between the electrical shocks, and they (thinking AS had a lot of information) repeatedly asked him what information he had about Baha and what information he had given to Nadeem. They also burnt AS’ left upper arm with lit cigarettes, and forced

him to sign some blank/stamped papers that were usually used for legal documentation. The Lady applied medication and bandaged AS’ wounds.

(l)    Escape from captivity in 2005 – The unknown men stopped questioning/ torturing AS for many days, but his leg wound became infected and got worse as there was no proper treatment. The Lady came daily to treat his wound, and on each visit he begged her to help him escape. One night she did not lock the door, and through the peephole at the door AS saw only 1 guard outside the room. He waited until the guard fell asleep (AS suspected the Lady put medication in the guard’s meal to put him to sleep), and at midnight successfully escaped without alerting anyone.

The house where AS was detained was in a hill area. Even though it was hard due to his leg wound, AS walked until he reached the main road before dawn. There was a milestone showing Karachi city was more than 100km away.  He stopped a bus heading to Karachi, told the driver he was injured and had no money, so the driver gave him a free ride.  AS reached Karachi at/about 12 noon – 1:00pm on the same day, and went into hiding in Sohrab Goth. AS went to Uncle Tahir's place by taxi after it got dark, and gave the taxi driver his gold ring to pay the fare.

After his escape AS did not immediately report to the Karachi police because he did not want to present himself to the police. Even though AS’ maternal uncle worked in the police force, he could not help on account of Baha’s political influence with a large illegal organisation behind him. AS’ family had been warned against contacting the army on his abduction, so for their safety AS also did not seek assistance from the army.

(m)   Fleeing to and staying at Clifton – AS claimed Uncle Tahir refused him entry to his house for fear of being attacked by AS’ enemies. AS told Uncle Tahir he needed treatment for the severe wound infection on his right calf and other injuries, but he could not go to the hospital as the police might locate him and then disclose his whereabouts to his enemies. Uncle Tahir took AS by taxi to his friend Dr Shafiq who lived in Clifton area, Karachi. Dr Shafiq diagnosed left foot and right thumb fractures, which were treated with plaster casts. Swollen skin was removed from AS’ left leg. It took 6-8 months for AS to fully recover from his injuries. He stayed at Dr Shafiq’s house during and after his treatment so he was safe from his enemies.

Uncle Tahir visited AS from time to time, and told him that after his escape his family received telephone calls from anonymous men who pressurised his family to tell them his whereabouts, but his family just said they had no connection with him anymore. AS’ family also told him the army had sent letters to his home address and to the local police station to look for him, and AS’ family told the police/army they had no idea of his whereabouts. In 2005, AS’ uncle told AS that Altaf had died from a heart attack, and that Zafar replaced Altaf with Mohammad Asif (“Asif”) and Azhar Hussain (“Azhar”) who became his subordinates.

(n)  Fleeing to Malaysia in 2006 – AS claimed he was traumatised by the abduction, but felt he could not hide forever in Clifton, so he planned to leave Pakistan to avoid further threats from his enemies. AS applied for a new passport which took 10 days to obtain. Uncle Tahir (assisted by a travel agent called Amir) arranged AS’ flight to Malaysia (as Amir said it was relatively easier to obtain a Malaysian visa). AS’ mother paid 250,000 Pakistani rupees (ie about HK$20,000) for the journey that included the cost of the air-ticket and 6 months’ living expenses in Malaysia.

AS stayed with Dr Shafiq for about 1 year until his Malaysian visa was granted. In 2006, AS flew to Malaysia, and had no difficulty in leaving Pakistan as he was not a criminal and his name was not on the Exit Control List. Through the arrangement of the travel agent AS stayed in a house in Kuala Lumpur for about 6 months. AS did not seek protection from the Malaysian government as he claimed to be unaware of the asylum system in Malaysia. AS kept in contact with Uncle Tahir by telephone, and was told his family received frequent telephone calls from unknown men enquiring about his whereabouts. AS stayed indoors most of the time because there were many Pakistani in Malaysia and he feared his whereabouts would be exposed. Uncle Tahir asked the travel agent to send AS to another country where Pakistan did not have an embassy.  AS stayed in Malaysia for around 4-5 months, and in 2006 the travel agent arranged for his flight to Taiwan.

(o)  Fleeing to Taiwan in 2006-2010 – Uncle Tahir had a friend in Taiwan called Shahid who helped AS by moving him among Shahid’s place and his friends’ places in, say, Taipei, Taichung, Tainun, Kaohsiung etc. AS claimed he did not lodge asylum claim in Taiwan because he hoped the dispute would be settled soon. In the meantime, AS was in contact with Uncle Tahir by telephone, and was told some anonymous men frequently telephoned his mother to enquire about his whereabouts despite frequent changes of her mobile telephone number, and every time she would pass the call to AS’ father.

In 2009, 1 of AS’ cousins married Ameer. Later, AS’ family asked Ameer (who had close connection with Baha) to act as middlemen to help settle the dispute between AS and Baha.  Ameer asked AS (via AS’ family) to return to Pakistan to settle the matter with Baha.

(p)  AS’ 1^st return to Pakistan in 2010 – AS overstayed in Taiwan, but he eventually informed the immigration authorities he wanted to go back to Pakistan, so within 2-4 days (in March/April 2010) they sent him back. AS claimed he was well aware of the danger of being killed or further tortured upon return to Pakistan, but he still went back because he wanted to solve the dispute caused by him and to spare his family further danger and stress.

AS stayed with Ameer in Rawalpindi, and tried to persuade Baha to settle with him. In early 2011, Ameer told AS he was unable to convince Baha, and Ameer believed Baha had started to track down AS in order to locate and kill him, so Ameer advised AS to again leave Pakistan.  Ameer found a travel agent to get AS a Filipino visa as it was easily available, and AS could not go back to Taiwan because of his overstay record.

(q)  Fleeing to Philippines in January 2011 – On 14 January 2011, AS flew to the Philippines. He stayed in Manila for about 1 month, went to Tagbilaran city for 2-3 months, and then returned to Manila. He kept in contact with Ameer who said he had approached Baha’s 2 cousins, ie Imran Shah and Lakhit Shah, to help him resolve the dispute with Baha.

(r)    AS’ 2^nd return to Pakistan in August 2011 – On 29 August 2011, AS returned to Pakistan, and stayed with Ameer in Miani for 2 days.  On 1 September 2011, Ameer took him to see Baha (in the presence of Baha’s 2 cousins) at his house in Bhera, Sargodha District. Baha agreed he would not hold a grudge against AS anymore, but he wanted to talk to AS privately, so he took AS to another room. He showed AS the papers AS signed at the time of the abduction, and asked AS to retrieve the information he had passed to Nadeem. AS denied he had told Nadeem about Baha. Baha also made an offer to AS that he would kill Ameer (since Ameer knew too much about Baha’s illegal activities) and AS could take Ameer’s place, but Baha threatened to kill AS if he told Ameer about the intended killing.  AS asked for 4-5 days to consider (as he intended to alert Ameer and to flee). AS said that because AS’ family had declared to the community they no longer had any connection with AS, these matters would not have involved his family.

(s)   Ninth incident (shooting incident) – On the same day after meeting Baha, AS told Ameer of Baha’s plan, so Ameer took AS to stay at his brother’s house at Miani.  On 8 September 2011, AS and Ameer went to Sargodha with a view to meet Baha's cousins and to tell them their mediation with Baha failed.  When they were on their way, AS/Ameer became aware they were followed by 4 masked riders on 2 motorbikes. Their car slowed down due to the poor road surface when they reached Sheikh Pur near Bhera, and the motorcyclists waved them to a stop. Then the motorcyclists alighted, and again signalled their car to stop. When they uncovered their faces, AS recognised 2 of them were Asif and Azhar, so Ameer accelerated their car to flee. Asif and Azhar fired a few shots that hit the back of the car.

13.AS claimed that because of such encounter, he and Ameer cancelled the trip to visit Baha's cousins. AS told Ameer not to take care of him any further so as not to put Ameer in danger, and he warned Ameer that his own life was also in great danger. AS asked Ameer to drop him off at a bus terminal in Sargodha, and he took a bus to Karachi where he stayed with Uncle Tahir’s friend. AS fled to Karachi in September 2011 and remained there till 2012 (but AS could not recall the exact duration).

14.AS claimed Ameer sent a complaint letter in respect of the shooting incident to Bhera police station, but the police did not register any FIR due to (according to AS) Baha’s influence over the Bhera police. AS later learnt from Uncle Tahir Ameer was killed by Asif, Azhar and other unknown men on 20 September 2011. The murder was reported to the police, and AS came to learn the details of the incident from the FIR retrieved by Uncle Tahir. The FIR for Ameer's attack stated he was shot by some unknown people. 

15.In 2012, AS went to Faizabad in Rawalpindi because he intended to apply for a Chinese visa at nearby lslamabad city.  Uncle Tahir asked the travel agent Ahmed to make careful arrangement for AS’ flight. AS went into hiding in Faizabad for about 20-30 days until 26 September 2012 when his Chinese visa was issued. On 9 November 2012, AS departed Pakistan through Islamabad airport, and had no problem in passing through Pakistani immigration control.  On 10 November 2012, AS arrived at Guangzhou, China. On 13 November 2012, AS went to Shenzhen, China, and then came to Hong Kong illegally by boat.

16.AS stated in the Interviews that some organisations thought he was an Ahmadi Muslim so they took and tortured him, hence he could not return to Pakistan. AS also claimed in the NCF he would be killed or seriously harmed by Baha and MSF gang if he returned to Pakistan. When asked about such discrepancy in the NCF and Interviews, AS explained he was told to express his problem briefly in the NCF, so he could not say so much, but the reasons for his problem were the same as mentioned in the Interviews.

17.AS claimed he kept in contact with his mother and sometimes Uncle Tahir by telephone.  AS feared that if he returned to Pakistan, Baha would kill him and would then allege he was 1 of the murderers who killed Ameer (as Baha had in his possession blank paper with AS’ signature). AS did not think the Pakistani police could protect him.  Despite AS’ efforts in lodging police reports and sending complaint letters, there were still threats towards AS and his family. Azhar and Sikandar were arrested for a short while, but they were not charged. Asif was on the wanted list, but he was not arrested.

18.AS claimed his enemies would not spare anyone whom they suspected might have known about their illegal activities.  AS did not know anything about the Ombudsman in Pakistan as people used to complain to the police or sometimes to the Chief Minister (“CM”).  The complaint letter to CM was sent by post, but AS did not know whether or not the CM had taken notice of it.

19.AS claimed that whilst he could have reported to the local police station of the city wherever he settled down, such police station would have to verify his personal particulars from the police station of his Village.  AS feared corrupt police officers might disclose his whereabouts to Baha and his group, but he could not live in hiding for the rest of his life, and it was difficult to remain in hiding as he needed money. Further, his maternal uncle had passed away, so there was no one to help him. Hence, AS would not consider relocating to other places such as Faizabad or Islamabad, and instead AS sought life protection in Hong Kong.

20.AS produced under the NCF several exhibits and photographs of the scars on his head and calf (as listed in paragraph 7 of the DOI Decision). In AS’ answer 52 in the NCF, AS reserved his rights to make application on other grounds once available.  In the Interviews, AS said he had already mentioned everything and there was nothing more.  AS did not provide further information or further documents for the DOI to consider in assessing his case.

21.AS gave oral evidence at the hearing before the Adjudicator. He adopted the NCF, Interviews and Notice of Appeal/Petition Non-Refoulement Claim, and gave evidence as follows:

(a) AS’ younger brother had mental disability and was looked after by AS’ parents. His father’s cattle farm only had a couple of cattle left as his parents were getting old. AS’ father was born in 1955, and his mother was 58 years old. They still lived in the Village with his younger brother, and they were not harmed as they told people they no longer had anything to do with AS.

(b) AS claimed Altaf’s daughter was never kidnapped, and it was merely an excuse Altaf’s men gave to the police for their shooting of AS’ father. AS claimed Altaf’s men were looking for him and not his father when his father was shot. AS complained that everyone who had helped him was shot as a warning to those who would offer him help.

(c) AS claimed Ameer was killed because he helped AS. Uncle Tahir who helped him resolve his problem with Baha and funded his escape from Pakistan passed away in August 2015.

(d) AS said Baha is now a member of the NA while his elder brother Amin was a member of the NA.

(e) AS claimed Baha made use of the religious school Bhera Darul Aloom to offer training for Pakistan TTP.

(f) AS said that in 2002 he gave information about Baha’s illegal activities to Nadeem who used such information to attack Baha, and as a result Nadeem was elected to the NA in 2008. AS claimed the reason he was not killed by his kidnappers was because they wanted to find out what information he possessed and to whom he had given the information, and he told his kidnappers they would not get the information if they killed him. AS claimed his enemies suspected Ameer gave AS information on Baha, so if he returned to Pakistan and worked for Baha, his life would not be in danger. But AS felt he was lucky to have escaped and not have to be involved in their illegal activities like Ameer.

(g) AS claimed he could not have lived anywhere in Pakistan freely because he would have to live in hiding and fear. AS further claimed his family members were helping him resolve the problem in Pakistan, and he would return to Pakistan once his problem with Baha was resolved.

Adjudicator Decision

22.The Adjudicator analysed AS’ claim under all applicable grounds:

(a) risk of torture as defined in Part VIIC of the Immigration Ordinance Cap 115 (“IO”) (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 of BOR (“BOR3”) (“BOR3 risk”);

(c) risk of persecution by reference to the non-refoulement principles under Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”) (“persecution risk”);

(d) risk of violation of the right to life under article 2 of BOR (“BOR2”) (“BOR2 risk”).

23.On the matter of credibility, the Adjudicator noted there were a number of discrepancies between AS’ evidence in the NCF answers and the evidence at the oral hearing:

(a)   AS stated in the NCF that his father was born in 1955 and his mother was 55 years old. At the oral hearing, AS said his parents were elderly and could not manage more animals at the cattle farm, and his mother was 58 years old. AS did not explain what happened to his 2 uncles who used to work at his father’s cattle farm if they had stopped working there.

(b)   2 letters respectively dated 15 and 24 July 2002 written by AS’ grandmother to SSP of Sargodha police station complaining about Altaf and his men Zafar and Saif shooting her son and son-in-law were produced. The date of the shooting mentioned in the letter dated 15 July 2002 were 20-21 July 2002, but the other letter dated 24 July 2002 did not mention the date of the shooting incident. AS was questioned about the shooting incidents referred to in the aforesaid 2 letters at the 2^nd Interview, and he said they referred to the same incident. The Adjudicator found it inconceivable that the letter dated 15 July 2002 referred to the shooting incidents on 20-21 July 2002 (ie 5 days after the date of such letter).

(c)   AS said his parents did not tell the Pakistani army he was kidnapped after he failed to report for duty because Altaf and his men warned them not to do so. The Adjudicator found it unreasonable for AS’ family (who were told of the kidnap) not to seek help to get AS released when 1 of his uncles was a police officer and his grandmother had been sending complaint letters to the police. Further, the Adjudicator considered the Pakistani army (ie AS’ employer) would have helped to rescue AS had they known of his kidnap. Still further, since AS failed to report for duty after he was kidnapped, the army when they found him would have punished him for serious breach of army regulations in failing to report for duty without the army’s consent.

(d)   Prior to the hearing before the Adjudicator, AS was asked to submit medical certificate/report in respect of his injuries. He failed to do so, and chose to show the scars on his head, calf and left upper arm at the hearing, but the fact he bore scars were not conclusive evidence that he sustained injuries during his kidnap.

(e)   The Adjudicator found it hard to accept all that AS’ kidnappers wanted was

the information he had given to Nadeem. According to AS, he was never involved in the illegal activities of Baha and his gang. He said he was told about it when he was in college, and it was confirmed years later in 2010 by Ameer. But AS said that before 2010 or thereabouts Ameer was 1 of Baha’s right hand men, so Ameer would have personal knowledge of Baha’s illegal activities. But in 2002-2004, AS was an ordinary student at his college who should be in no better position than other students at the college as far as knowledge about Baha’s and Ameer’s illegal activities were concerned. The Adjudicator said it did not make sense for Baha to kidnap AS to find out what he told Nadeem unless AS was more involved in Baha’s illegal activities than he told the ImmD or the Board. But AS denied he was ever involved in Baha’s activities, and claimed he and Ameer were enemies in college. Even though AS produced the reports he made to the police and the FIRs in respect of complaints of attacks and attempted attacks lodged by him and Ameer, they did not point to Baha as the mastermind behind the attacks.

(f)    AS claimed Amin was a minister of the NA in 1997-1998, and Baha replaced his brother as a member of the NA now. The Adjudicator noted there was no mention of Baha being so elected in 2015. But the result of the 2013 Pakistan election as reported on Wikipedia revealed Amin was elected in the 2013 election.[1]

(g)   AS failed to establish Baha, whom AS claimed was Amin’s brother and son of a respected justice who wrote many books on the Muslim religion, would be involved in illegal activities such as drugs and killings, which allegation required strong/cogent supporting evidence that the Adjudicator found AS failed to supply.

Based on the aforesaid findings, the Adjudicator found AS’ evidence was full of inconsistencies, and the negative pull of such inconsistencies rendered AS’ evidence unreliable and his claim implausible.

24.In relation to torture risk, the Adjudicator assessed AS’ risk of torture (if refouled back to Pakistan) was low. His evidence was not credible (see paragraph 23 above), so his claim for protection from torture risk under the IO had not been established. The Adjudicator held that the ill-treatment AS received during his kidnap (even if true) was an isolated incident, and in any event it was not meted out by a public official or with the consent/acquiescence of a public official or public authority. The Adjudicator therefore found AS failed to fulfil the requirements under the IO or the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations on 10 December 1984 as applied to Hong Kong.

25.In relation to BOR3 risk, based on the facts relied on by AS and the reasons given in paragraphs 23-24 above, even though the injuries AS claimed he sustained when he was in captivity were serious enough to be severe, the many inconsistencies in his general evidence gave rise to serious doubts as to the truthfulness of his evidence. Furthermore, AS was able to escape the notice of Baha and his gang for a long period of time in Pakistan before, between and after his trips abroad. The Adjudicator did not accept AS faced a real risk of being tortured or ill-treated as defined by CIDTP by Baha and his gang if he were refouled back to Pakistan. The Adjudicator also held that AS had failed to establish any ill-treatment on his return would be severe, that he faced a substantial risk of being ill-treated or tortured, and/or that the risk was personal and present.

26.In relation to the persecution risk, AS was a national of Pakistan outside his native country. The Adjudicator held that AS’ claim, even if true, was not within any 1 of the 5 specified Convention reasons, and based on the findings in paragraph 23 above, the Adjudicator was not satisfied AS would be persecuted should he be refouled.

27.On the matter of state protection, AS claimed he did not trust the police in Pakistan because they failed to arrest anyone after reports of the attacks on his father and Uncle Liaqat and the murder of Ameer ”in spite of the family of the victim’s report of Ameer and the English School teacher”. AS also said the family of the victim made a settlement with Ameer and his people, and if so, it might explain why the police did not actively pursue the culprit. But the Adjudicator found such information to be unsupported hearsay evidence from AS that was unreliable.

28.The Adjudicator found the effectiveness of the Pakistani police force might be poor in the past based on its history of corruption due to low salaries and lack of accountability, and he referred to paragraphs 2.7.4 and 2.9.3 of the United Kingdom Border Agency (“UKBA”) Country Information and Guidance of October 2014, the Human Rights Commission of Pakistan (“HRCP”) report of 2009, section 18.17 of the UKBA COI report on Pakistan of 9 August 2013 which referred to the Asia Society’s “Report by the Independent Commission on Pakistan Police Reform” dated July 2012, and section 2.6 of the report “Pakistan Organisation in Pakistan” issued by the HRCP / Commonwealth Human Rights Initiative of May 2010. It was said that according to the above COI, it was up to AS to access the available protection that the state provided or seek alternative avenues such as the Ombudsman (a 2013 report by the Ombudsman in Punjab) and the National Accountability Bureau (“NAB”) of Pakistan (the 2013 Report of the NAB) should the police fail to offer assistance or should AS encounter unlawful harassment from Baha on his return to Pakistan.

29.As regards internal relocation, the Adjudicator noted that should AS feel returning to his home Village to be undesirable, he had the option of relocating to other parts of Pakistan such as big cities like Rawalpindi or Lahore. The Adjudicator further noted that according to paragraphs 2.4.1-2.4.2 of the UKBA COI report on Pakistan of 6 October 2014, Pakistan allowed freedom of movement within the country.

30.In relation to BOR2 Risk, the Adjudicator noted AS did not supply any further or additional grounds for consideration by the DOI. On such basis and on the findings of fact made, the Adjudicator was unable to conclude AS had a real risk of danger against his life should he be refouled back to Pakistan.

31.For all of the above reasons, the Adjudicator was not satisfied AS would face real risk of danger of torture if he were refouled back to Pakistan. The Adjudicator further found AS failed to fulfil the necessary requirements under the IO and Refugee Convention, so he rejected AS’ claim in respect of BOR2, BOR3, persecution and torture risks, dismissed his appeal, and confirmed the DOI Decision.

Leave to apply for judicial review

32.In the present application for leave to apply for judicial review, the court is to consider whether the Adjudicator had made any error of law or conducted procedures that failed to comply with the high standard of fairness as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar.[2] In addition, the court would also rigorously examine and anxiously scrutinise the decision-making process and the reasons by which the Adjudicator reached the Adjudicator Decision, and consider whether they satisfied the Wednesbury test.

33.AS did not ask for oral hearing of his application for leave to apply for judicial review. I have considered with rigorous examination and anxious scrutiny the papers for the present application by AS. I consider it appropriate to deal with AS’ application on paper. Upon careful consideration, I am unable to fault the Adjudicator Decision. She had analysed the materials, claims and evidence with care and caution. She had also applied the correct standard of proof. AS’ complaints against the Adjudicator were not made out. I found no substance in AS’ grounds for the present application.

34.In respect of the grounds of review in paragraph 3(a) above (insufficient research and inquiry into COI materials), paragraph 3(b)(i) above (failure to take relevant or relevant parts of the COI materials into account and placing weight on COI materials of little or no relevance) and paragraph 3(e) above (failure to consider and assess whether state protection existed under BOR3), I note the Adjudicator made particular references to the COI materials she examined/assessed. I have perused the Adjudicator Decision that referred to the COI materials the Adjudicator had taken into consideration. They were relevant, objective and balanced, and there was nothing to show they were something beyond the reasonable scope of materials which an adjudicator was expected to take into account. In fact, the Adjudicator specifically addressed AS’ allegations about police corruption and need for bribery for the police to act in the NCF/Interviews and in his evidence (see paragraph 27 above). But there was also COI that after passing the National Accountability Ordinance in 1999 state protection was available with the setting up of NAB with 4 regional offices including one in Rawalpindi, and that a large number of police officers had been disciplined for misconduct and inefficiency. There was further COI that showed avenues of recourse when a Pakistani police officer did not fulfil his/her duties or engaged in active wrongdoing (see paragraphs 95-96 of the Adjudicator Decision). Thus, the COI materials that the Adjudicator considered in the Adjudicator Decision covered materials that supported AS’ concerns and that showed ongoing efforts to put in place strategies and programmes to bring out improvement in the delivery of justice. AS had not shown what other COI materials he had provided to the DOI and/or Adjudicator that the latter had failed to consider. AS’ criticism was but a bare assertion, and he did not point to any particular COI material that was more pertinent. After all, the claim was that of AS being the applicant, and he bore the ultimate responsibility for it throughout the processing of it with the burden always remaining on him being the person claiming protection from refoulement. In any event, the Adjudicator had found AS’ evidence to be inconsistent and flawed such as to render his claim implausible and unreliable. In my view, these grounds were not arguable.

35.In respect the ground of review in paragraphs 3(b)(i) and 3(d) above (failure to evaluate and make finding of fact as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violation of human rights, and ignoring evidence towards minorities), Au J in ST v Betty Kwan & anor [2013] 3 HKC 87,[3] 99 said as follows:

“(1) The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.

(2) The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

36.In my view, the Adjudicator had made due and adequate assessment of the evidence before finding that there were no substantial grounds for believing that AS would be in danger of being subjected to torture. As seen in paragraph 23 above, the Adjudicator noted discrepancies in AS’ case such that the negative pull of such inconsistencies rendered his evidence unreliable and his claim implausible. In my view, there was sufficient evidence and adequate analysis to support such finding/conclusion by the Adjudicator. In the circumstances, there was no basis to suggest AS had any personal and present risk of being subjected to torture.

37.Further, the Adjudicator found that the ill-treatment AS received during his kidnap (even if true) was an isolated incident, and not meted out by a public official or with the consent/acquiescence of a public official or public authority (see paragraph 24 above). This was supported by the Adjudicator’s findings as to AS’ credibility, and the fact AS was able to escape the notice of Baha and his gang for a long time in Pakistan before, between and after his various trips abroad (see paragraph 25 above). In my view, there was no duty on the Adjudicator to proceed further to consider the pattern of violation of human rights and/or general evidence of violence against minorities. This ground had no merits.

38.In respect of the ground of review in paragraphs 3(b)(ii) and 3(c) above (putting weight on COI materials of little or no relevance, cherry-picking COI materials, and selectively relying on COI materials that favoured rejection of AS’ claim), and paragraph 3(i) above (Adjudicator displaying a biased and formula approach), these grounds contained no particulars and had no merits.

39.In respect of the ground of review in paragraph 3(g) above (officers being rude and having pre-judged AS’ case, and officers speculating it was merely out of anger/ spite that AS was assaulted/tortured/threatened), there was no merit to this ground. I note the present application for leave to apply for judicial review was only directed at the Adjudicator Decision and not against the DOI Decision and/or DOI Further Decision. Since the hearing before the Adjudicator was by way of rehearing, such complaints against the immigration officers were irrelevant.

40.In respect of the ground of review in paragraph 3(h)(ii) above (AS was not given the opportunity to submit additional facts for his non-refoulement claim in respect of the BOR2 risk as he did not receive the letter from ImmD that invited him to submit additional facts), there was an oral hearing before the Adjudicator. AS’ failure to provide additional materials or facts on any other absolute and non-derogable rights under BOR, particularly BOR2 risk, was noted by the DOI in coming to the DOI Further Decision. But the present application for leave to apply for judicial review was only against the Adjudicator Decision. In AS’ appeal to the Board he gave evidence at the oral hearing before the Adjudicator on 25 November 2016, so he must have known he could supplement, amend or add information in relation to his petition. But no additional materials or facts were given by AS at the oral hearing before the Adjudicator. Still further, even for the purpose of the present application for leave to apply for judicial review, AS did not state in the AS Aff any additional materials or facts on any other absolute and non-derogable rights under BOR, particularly BOR2 risk, that he wished to rely on. I also note the Adjudicator carefully considered AS’ account in coming to her conclusion. It must be remembered that even though the Adjudicator had to assess AS’ non-refoulement claim with a high standard of fairness and as a joint endeavor, it was AS’ duty to establish his non-refoulement claim.[4]

41.In respect of the ground of review in paragraph 3(h)(i) above (failure by decision-maker to rely on AS’ additional facts/grounds in relation to BOR2 risk without any interview or consideration of his further facts and grounds), I find this to be wholly without merit. Since it was AS’ case that AS had not been given the opportunity to provide additional materials or facts on any other absolute and non-derogable rights under the BOR, particularly BOR2 risk, I am quite unable to see how AS could complain that the DOI/Adjudicator failed to properly consider and rely on the further/additional facts and grounds that he had submitted. I repeat the discussion in paragraph 40 above.

42.In respect of the ground of review in paragraph 3(f) above (paragraph 43 of the Adjudicator Decision), the Adjudicator stated as follows in paragraph 43 of the Adjudicator Decision:

“[AS] said he was told his mother had been receiving calls from anonymous callers asking for his whereabouts in spite of frequent changes of her mobile phone number, it seems the changes of her telephone numbers were known to these people.”

I am wholly unable to see from paragraph 43 (or indeed other paragraphs) of the Adjudicator Decision any mention by the Adjudicator that “he do not think that [AS] heard (or would have been allowed to hear) in detail the telephone conversation of Niraj”. Even more perplexing was the suggestion in the ground of review in paragraph 3(f) above that AS was Niraj’s wife and they lived in the same home such that “she” would overhear telephone conversations. In fact, AS was an unmarried man, and not Niraj’s wife. There is no merit to this ground.

43.I am unable to find any grounds that showed there was an error of law by the Adjudicator. I see no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The Adjudicator Decision was not Wednesbury unreasonable.

44.In my view, AS’ claim was not reasonably arguable. There was no realistic prospect of success, and I refuse leave for judicial review with no order as to costs.

45.The applicant has been named above as “AS”. For the avoidance of doubt, I direct that the applicant shall be named “AS” instead of his name in these proceedings.

Dated the 22^nd 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

[1] according to paragraph 78(vi) of the Adjudicator Decision, Wikipedia stated Amin was born in Bhera, Punjab, Pakistan on 25^th Rajab 1369 AH (9 May 1950) and his father was the late Justice Shaykh Muhhamad Karam Shah al-Azhari; he was a Pakistani politician and parliamentarian; he was elected a member of the NA on a ticket of PMLN for NA-64 (Sargodha) in Pakistani General Election 2013

[2] (2004) 7 HKCFAR 187

[3] allowed in appeal to the Court of Appeal in respect of other matters in [2014] 4 HKLRD 277

[4] see section 37ZA(1) of the IO