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

HCAL420/2017

[2018] HKCFI 679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 420 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 on 13 May 2012 only to be arrested on the same day.  He lodged a claim for non-refoulement protection which was rejected by the Director of Immigration (“the Director”) on 11 February 2016 and 28 December 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 17 July 2017.  He requested an oral hearing which was set down for 12 December 2017 but the applicant was absent on that date.  A notice of hearing was sent to the address supplied by the applicant in his application form.  The applicant had applied for legal aid but it was refused on 31 October 2017.  I was satisfied the notice of hearing was posted to the correct address therefore I consider the application on the papers.

3.The basis of the applicant’s claim was that if he was refouled to Pakistan he would be harmed or killed by Pakistan Muslim League (N) party (“PMLN”) members because the applicant had accused them of murdering his brother and father.  Three years after filing his claim, the applicant added to his claim that he would be harmed or killed by the Taliban in Pakistan.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full in their decisions therefore I only need to summarise it here.

4.The applicant was born in the Punjab and received eight years of education; after that he has never worked.  Yet in one interview, he told an Immigration officer that he was a security guard in Pakistan but later explained he said that because he was very upset.  His father was a member of the PTI party and was the elected Nasim in 2010.  In May 2010, his father and brother were on a stage at a political gathering when they were shot dead by PMLN supporters with machine guns; a total of 22 people were killed.  The applicant was not present.  He did make a report to the police, was told they were investigating but as far as he knows nobody has ever been arrested for the murders.

5.A month later, the applicant received a death threat over the phone warning him to drop his police report against the PMLN otherwise he would be the next target.  Not long after, strangers came on four occasions to his house either when he was not at home or he hid himself, looking for him.  They told his mother they would kill him if they found him.  Those threats went on until the applicant relocated to Peshawar in early 2011 because he was under too much stress.  The applicant tried to lodge a High Court case in Islamabad through a lawyer to investigate his father’s murder but is unaware of the result.  Whilst in Peshawar he continued to receive death threats over the phone so he decided to seek protection outside of the Pakistan.  A friend suggested he go to the United Kingdom but his application for asylum was refused in February 2012.  He then returned to Pakistan and tried to seek protection in Japan.  He was told to go there via mainland China.  When he arrived in China in May he was met by an agent who took him to a remote spot and told him the climb over a fence into Japan.  He was immediately arrested by the Hong Kong police.  Only then did he realise that he had been duped by the agents.

6.Three years after his initial claim, the applicant added that he also feared the Taliban because he had encountered the Taliban in Pakistan three times.  They had tried to recruit him to join the party and on one occasion had even kidnapped him but his uncle, father and brother had helped him escape.  These details were mentioned in a First Information Report when he reported this to the police.  These details are also in media reports which the applicant said he would submit to the Director.

7.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”).

8.The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles relevant to the four applicable grounds.  He set out the applicant’s evidence as well as his answers given in the oral appeal hearing.  The adjudicator put to the applicant questions regarding discrepancies and inconsistencies he found.  Those include forgetting the date his father was murdered, whether his father was a security guard or not when he was murdered and why he had forgotten to mention that he had been kidnapped by the Taliban and lived in fear of them.  It led the adjudicator to doubt the applicant’s evidence.

9.The adjudicator accepted that there was probably an election as claimed by the applicant and his father did run for election but he was not convinced the applicant’s brother and father were murdered by the PMLN as he claimed.  He clearly did not believe he was kidnapped by the Taliban either.  The adjudicator set out his reasons for his findings in his decision.

10.Despite his findings, the adjudicator went on to consider the law and four applicable grounds as if the applicant’s evidence was truthful.  He went on to find that even on the applicant’s own facts there was no real risk of the applicant suffering any harm should he return to Pakistan.  He did consider the question of State protection and internal relocation having considered relevant Country of Origin information.  He concluded that there was available State protection if there was any risk and internal relocation was a viable option.

11.With regard to a torture risk, the adjudicator did not consider there to be anything which created a risk of severe pain being inflicted on the applicant should he be refouled to Pakistan.  He suffered no pain or suffering within the definition of torture or for the purposes set out under section 37U(1) of the Immigration Ordinance.  He was never a target of the State.  He did not accept there are substantial grounds for believing him to be in danger of being subjected to torture if he returned home; his torture risk claim failed.

12.With regard to a BOR 3 risk, there is no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  The adjudicator found the applicant is not at risk of being subjected to torture or CIDTP if you return to Pakistan; his BOR 3 risk claim failed.

13.Even on his own facts, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

14.Lastly, the adjudicator found he was not at real risk of persecution on account of any Refugee Convention ground nor did he have a well-founded fear of being persecuted for any of those grounds.  His dispute arose out of the PMLN threatening him to drop his police report/claim, it was not related to his political opinion.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

16.The supporting affirmation sets out three grounds.  The first ground is a complaint that the applicant only received the appeal bundle a few days before the appeal hearing and could not have it translated.  He therefore appeared at the appeal hearing confused and had a lack of understanding.

17.The appeal bundle contains his non-refoulement protection claim form and his interviews as well as the Country of Origin information from the Director and any submitted by the applicant.  The applicant should not have been surprised by its contents and if he had wanted anything translated there was an interpreter at the appeal hearing to help.  Nothing in the adjudicator’s decision records a request from the applicant for help, in fact he confirms that his interview record was correct and accurate and adopts his non-refoulement protection claim form.  There is no merit in this ground.

18.The applicant then complains that he answered all the questions honestly and is aggrieved by the adjudicator’s finding as to his lack of credibility.  This is a finding of fact I will not disturb, especially as I find the adjudicator has given full reasons for his conclusion that raise no questions.  There is no merit in this ground.

19.Lastly, the applicant complains that the adjudicator has relied on Country of Origin information that is hearsay, not officially recognised and is outdated.  However, he has not given any particulars to support this ground.  It would appear that the adjudicator has relied on the information in the appeal bundle that was relied on by the Director.  There is no complaint that that was problematic.  There is no merit in this ground.

20.I do not find any ground that shows there was an 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.

21.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 29^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