Ilyas Adil v. Torture Claims Appeal Board

HCAL 826/2017

[2018] HKCFI 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 826 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 27-year-old national of Pakistan who entered Hong Kong illegally and was arrested by the police on 10 January 2016.  After he was referred to the Immigration Department for investigation he filed his non-refoulement claim on 13 January 2016 on the basis that if he returned to Pakistan he would harmed or killed by members of his former political party Pakistan Muslim League (Nawaz) (“PML(N)”) for switching his support to rival Pakistan Tehreek-e-Insaf (“PTI”).  He was subsequently released on recognizance pending determination of his claim.

2.The applicant was born and raised in Dhal Mehmood Village, Mirpur, Azad Kashmir, Pakistan where his parents and three younger siblings still live.  After completing secondary education in Pakistan, the applicant went on to study business in a university in Cyprus from 2013 to 2015 but was unable to complete his study due to lack of fund.  Upon returning to Pakistan in September 2015 he joined his family in their decision to switch their support from PML(N) to PTI despite the fact that most people in their village were supporters of PML(N) and were furious with their decision.  The applicant however did not hold any position in PTI.

3.One day in October 2015 the applicant was approached by three supporters of PML(N) who demanded him to rejoin their political party, and when he refused they assaulted him by punching and kicking him until he fell to the ground.  As he did not suffer any serious injury, the applicant did not go to any clinic or hospital for any medical treatment, nor did he report the matter to the police.

4.On another occasion in November 2015 the applicant was again assaulted by several supporters of PML(N) who kicked him off his bike and punched and kicked him all over his body before leaving with a warning that if he still refused to give his support to PML(N), they would kill him the next time.  Again the applicant did not seek any medical treatment or go to the police but became concerned for his own safety.  He was then advised by his friend to leave Pakistan to seek asylum in Hong Kong, and with his parents’ support, he left Pakistan on 7 January 2016 first for China, and on 10 January 2016 he sneaked from Shenzhen into Hong Kong where he was subsequently arrested by police and raised his non-refoulement claim with the Immigration Department with legal representation under the Duty Lawyer Service.

5.By a Notice of Decision dated 28 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the status of Refugees (“persecution risk”). 

6.In his detailed decision the Director found on the facts that the low intensity and frequency of past ill-treatment from people of PML(N) indicative of small future risk of harm to the applicant upon his return to Pakistan, that in the absence of any evidence of any involvement of the state or police in the actions of those PML(N) supporters that state and police protection would be available to the applicant, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in other parts of Pakistan with a large population of 199 million people spread over a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to live and work safely in cities such as Islamabad away from his home town and free from any threats from those supporters of PML(N).  

7.By a Notice of Further Decision dated 13 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”). 

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 8 July 2016 and for which he attended an oral hearing before the Board on 31 August 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the applicant’s account that he may have been attacked by PML(N) supporters but reasoned that as he is not a member of the PTI and held no position in the party, if he returns to Pakistan it is unlikely that he would be of any ongoing interest to the PML(N) party members in his area, and that in any event the Board was satisfied that if he still faces problems in his home district, he can relocate within Pakistan to a place of safety such as Lahore or Islamabad, as he himself also acknowledged at the hearing that the PML(N) members from Mirpur would not follow him elsewhere in the country. 

10.On 31 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he provided eight grounds for his intended challenge, which can essentially be summarized as follows:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI when considering his claim;

(2) irrationality in the adjudicator’s failure to take into account of or put proper weight on the relevant COI, and being selective or reliance on outdated COI;

(3) irrationality in the adjudicator’s failure to evaluate or make findings of fact as to whether there exists in Pakistan a consistent pattern of violation of human rights;

(4) irrationality in the adjudicator’s failure to analyze or assess whether effective or adequate state protection exists in Pakistan;

(5) irrationality in the adjudicator’s taking into account of irrelevant or incorrect considerations not based on facts;

(6) procedural impropriety for failing to call for psychological or psychiatric evaluations and reports;

(7) procedural impropriety/unfairness in the adjudicator applying the wrong standard of proof; and

(8) procedural impropriety/unfairness in lack of or insufficient legal representation from assigned duty lawyer. 

11.However, all of these grounds appear to me just broad and vague statements devoid of any particulars or specifics from the applicant to show how or in what manner that the adjudicator got it wrong in her assessment of his claim.  The first five grounds, for example, all refer to the adjudicator’s improper use of or wrongful reliance on COI or other materials without stating or identifying which particular parts of them were, as alleged by the applicant, outdated or irrelevant.  An examination of the COI referred to by the adjudicator in her assessment of the situations of ethnic and political violence in Pakistan show that they were as recent as in 2016 after the applicant’s departure, hence any suggestion that they were outdated is simply groundless, and having read carefully the Board’s decision, I am unable to discern any irrelevant, selective or improper consideration of COI by the Board.

12.As for the complaint of the Board not calling for psychological or psychiatric evaluations or reports, again in the absence of any reason or particulars provided by the applicant and in the absence of any evidence to suggest that he was suffering from any mental problems or incapacity, I do not see any reason or necessity for such evaluations.

13.I also do not find any merit in the applicant’s complaint under ground (7) when the adjudicator did in fact accept his account of being attacked by PML(N) supporters on those two occasions and for being caught up in inter-party rivalries and violence in late 2015 in Azad Kashmir in the lead up to the 2016 election, and that those PML(N) supporters wanted him to support their party and not the PTI.  There is simply no merit in this complaint of the applicant, as there was never any issue over the standard of proof as to his claim of harm or ill-treatments from PML(N) supporters that led him to depart Pakistan.

14.As for the remaining ground under ground (8), it is clear that the applicant had had the full benefit of legal representation under the Duty Lawyer Service during the process of his claim before the Director, and in the absence of any specifics from him there is simply no basis for him to complain of lack of or insufficient legal representation.

15.In the premises and for the reasons given, I do not find any merit in any of the grounds of the applicant for his intended challenge, and having considered the decisions of both the Director and the Board with rigorous and anxious scrutiny, nor do I find any error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  I am therefore not satisfied that there is any prospect of success in his intended application for judicial review, and accordingly I refuse his leave application.

Dated the 27^th day of April 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