Naseem Mohammad Ishaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL479/2017

[2018] HKCFI 591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 479 of 2017

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

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who claimed to have entered Hong Kong illegally by boat on the same day that he was arrested on 8 January 2016.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 7 June 2016 and 23 June 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) against the first decision which was rejected on 12 May 2017 without a hearing.  He filed a notice of application for leave to apply for judicial review on 3 August 2017 against the Director’s first decision and the TCAB decision.  He did file a supplementary affirmation but it contained no grounds.  An oral hearing was arranged and on 8 December 2017 the applicant appeared in person.

2.The basis of the applicant’s claim was that if he were refouled to Pakistan he would be harmed or killed by his business partner Tahir and his elder brother called Umar.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore I do not propose to repeat it here.  I will summarise it.

3.The applicant is married with 30 years’ working experience which includes accountancy, an auctioneer and a salesman.  When the applicant’s father died the family home was divided up between him and his siblings but his brother Umar occupied most of it and created discontent.  His sons assaulted the applicant when he asked Umar to vacate his share and his sisters’ share of the family home.

4.The applicant had a business partner when he was an auctioneer called Tahir who was friends with his brother Umar.  He had also deceived his own family using false documents to steal their property.  They were both connected with the Pakistan Muslim League (Nawaz) party (“PMLN”).  They were both corrupt men with no morals.  After the applicant was assaulted by his own nephews, when he tried to make a police report they took no action.  The applicant believes it was because Tahir had intervened using his political clout and told the police that it was a private matter between brothers.  The applicant moved to Karachi to escape his brother.

5.In 2015 the applicant tried again to take back his property for himself and his sisters.  He returned home to try and negotiate with his brother Umar.  Again, his brother told his three sons to physically attack the applicant.  Again, he tried to report the assault to the police but his ex-business partner intervened as he did on the last occasion.  The police did not investigate because it was a family dispute.  For about six months the applicant was verbally threatened on for five occasions by Umar and Tahir and warned off demanding his share of the home as well as his sisters’ shares.  He was told that the police and the land department were on their side.  His life was even threatened.  The applicant decided to leave Pakistan to avoid being attacked by his brother and nephews again.  He decided to flee to Hong Kong because he heard that it supported refugees.  He paid an agent 600,000 Pakistani rupees to arrange the trip.

6.The adjudicator analysed the applicant’s claim under the following three 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”); and

(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”).

7.The adjudicator determined the appeal/petition without a hearing.  There is no absolute right to an oral hearing and he decided the appeal on the papers.  The adjudicator correctly set out the law and legal principles relevant to the three applicable grounds he considered.  He then set out how he arrived at the decision not to order an oral appeal hearing.

8.He considered the principles guiding this decision set out by Cheung CJHC in ST v Betty Kwan & Ors, CACV 115/2013 at paragraphs 20‑54.  With particular reference to those paragraphs, he set out what considerations he found most relevant that led him to the decision that he could dispense with an oral hearing and still adhere to a high standard of fairness which is required in dealing with torture claims.  He also considered that it was very relevant that when the applicant’s claim was dealt with by the Director, he was legally represented.  He found in the name of overall fairness that the applicant had nothing useful to contribute by way of being heard if there was a hearing.

9.Having read both the Director’s decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained. The adjudicator went on to show that he fully understood the applicant’s case and evidence, considered the law and legal principles before finding that the applicant was not at risk of torture if he returned to Pakistan, nor at risk of ill-treatment or CIDTP under BOR 3 nor had a well‑founded fear of being persecuted for a Convention reason.  He confirmed the decision of the Director.

Leave to apply for judicial review

10.The supporting affirmation contained no grounds and the applicant was given an opportunity in the oral hearing to submit grounds.  His only ground was that it was unfair there was no oral hearing conducted for the appeal.  He reiterated that his story was true but then the adjudicator had made no finding on credibility.

11.Despite the fact the applicant put forward no substantial grounds to support his application, I nevertheless considered with rigourous examination and anxious scrutiny the adjudicator’s decision.  I did not find any error of law by the adjudicator.  I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing.  I did not see it as a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.

12.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 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