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

Case No.HCAL 413/2017[2018] HKCFI 588

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL413/2017

[2018] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 413 of 2017

BETWEEN
	Ahmed Ishtiaq	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

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 August 2009 only to be arrested the following day. He raised a torture claim which was then taken to be a non-refoulement claim upon the commencement of the Unified Screening Mechanism in March 2014. The Director of Immigration (“the Director”) rejected his claim on 8 September 2016 and 30 March 2017. He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 13 June 2017. The applicant then filed a notice application for leave to apply for judicial review on 17 July 2017 and requested an oral hearing which was set down for 7 December 2017. The applicant appeared in person.

2.The basis of his claim was that if he returned to Pakistan he would be harmed or even killed by the father and brother of his late wife because they disapproved of their relationship and marriage. Both the Director and the adjudicator of the TCAB set out the applicants claim and evidence in full in their decisions therefore, I only need summarise it here.

3.The applicant met his wife in 2007 when he was working in a jewellery shop and they became lovers after a year. In 2009, her parents found out about it and sent four men to warn him off her. When he did not stop seeing her, he was beaten up in a park in March 2009 by the same four men with wooden sticks. He lost consciousness but woke up in the police station. When he told the police that he was in love with his girlfriend, they beat him as well. He was detained for a few days and found out that her father had bribed them to detain him and beat him.

4.His father had to bribe the police to release him. He had received medical treatment for bruising and swelling and head wounds. In May 2009 the applicant married his girlfriend in secret in a solicitor’s office but it was not a formal marriage. They moved away and rented a house together but one month later, when the applicant was at work a friend told him that his wife’s brother had gone to their home and shot dead his sister. The applicant hid for two days because he was worried about his personal safety.

5.Two days later, his wife’s brother and three other males tried to attack him on the street with guns but because of the crowds he managed to escape. The same people threatened his parents. The applicant escaped to Rawalpindi and stayed with a friend. On 31 July 2009 the applicant left Pakistan for China before sneaking into Hong Kong by boat. Since he left Pakistan in 2009 he has had no contact with his parents. But in October 2013, his parents called and said that his wife’s family were still looking for him.

6.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”).

7.The adjudicator treated the appeal as a rehearing. She conducted an oral hearing. She set out the applicant’s claim and evidence in a decision. She correctly set out the law and key legal principles applicable to the four grounds. She analysed his evidence and found that his evidence was not credible and there were serious and material inconsistencies which led her to find him unbelievable; she set out those details in her paragraphs 19 to 23.

8.He had previously told the Director that his marriage was not a formal marriage yet during the appeal hearing he provided a certified translation of his marriage certificate to prove it was a formal marriage. When asked to explain the discrepancy, he did not remember that he had previously told the Immigration Department that his marriage was not a formal one. In his torture claim form which must have been filled out in 2009 he mentioned that he wanted to submit his marriage certificate medical report and her post-mortem report but had been unable to despite many requests to date. He eventually told the Immigration Department that he had lost the documents. Yet during the appeal hearing, he was able to present certified translations of the marriage certificate and original death certificate. He said he was sent these documents just before the oral hearing. Because these directly contradicted his previous answers, the adjudicator found it hard to accept them as evidence when they went to the crux of his case; that is his marriage to a woman whose family despised him and killed her because of him.

9.The adjudicator went on to find that there was no real risk the applicant would face torture as defined and set out in Section 37U of the Immigration Ordinance; the torture risk claim failed. There was no evidence of any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP; the BOR 2 and BOR 3 risk failed. Lastly, he could not establish he had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if he was refouled to Pakistan; his persecution risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.There is a supporting affirmation with many grounds that criticise the adjudicator; they include her making errors of law to failing to sufficiently analyse Country of Origin information. None of which have proper particulars or any substance in the grounds or more importantly, any merit. However, what concerns me most was the applicant’s submission during the oral hearing on 7 December 2017 when I asked the applicant what mistakes the interpreter made during the oral hearing as he has suggested in his affirmation.

11.The applicant suggested I give him a week or so to think about his answer and he will be able to recall what mistakes the interpreter made; he suggested I adjourned the hearing. I suggested that he take his time to think before he answer, meaning he had as much time as he liked during that hearing that day. He then said that his “settlement” was going on at home in his country so this court just needed to give him more time. He knew that he was going to be sent home so he “just did this application (for leave to apply for judicial review) so I will get more time to stay here”.

12.This applicant’s admission in open court that he filed this application, not because he felt that there was an error of law or evidence of procedural unfairness or that there was a failure to adhere to a high standard of fairness by the adjudicator but because he wanted to drag on his non-refoulement protection claim so that he could remain in Hong Kong a bit longer is tantamount to an abuse of process. For that reason alone, in my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore I refuse leave to apply for judicial review.

Dated 23^rd day of March 2018.

	(Alan Ngan)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);	Sent to the Applicant on 23/3/2018 Ahmed Ishtiaq Applicant’s ref. no: Nil.	Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/3/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4921/16/9/300/P1164 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 802/13 & INCZ/9000874/17 (formerly RBCZ/2108/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Form CALL-1