Asjad Naeem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL445/2017

[2018] HKCFI 829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 445 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 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 illegally entered Hong Kong on 18 October 2009 only to be arrested on the same day.  The applicant has lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 12 May 2015 and 26 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) on 21 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 25 July 2017 and requested an oral hearing.  An oral hearing was set down on 20 December 2017 and the applicant appeared in person having had his application for legal aid rejected.

2.The basis of the applicant’s claim is that if he were to return to Pakistan he would be harmed or killed by his cousin Hussain because of a land dispute; he claims the applicant and his family are living on his land and he wants it back.  The applicant also claims that his cousin has framed him for a false criminal case and he is now wanted by the police.  Both the Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.

3.The applicant was born in 1985, single and has worked as a farmer and then an embroiderer.  In mid‑2009 his cousin Hussain began to demand the applicant and his family leave their home and land because it legally belonged to him.  He showed them/documents which certified his ownership. He gave them three weeks to leave.  He returned two weeks later with his sons and some policemen and reminded them they had one week to leave.  They returned on a third visit and the applicant’s brother told them that they were not leaving and he was slapped and punched.  He told the applicant to run away.  The applicant waited for him nearby.

4.When the applicant’s brother arrived later he was covered in scratches and bruises from his beating so they both went to stay with their sister.  One week later his brother went back to the village but the police and his cousin were waiting for him and arrested him after beating him. The applicant’s mother told him this over the telephone.  Three weeks later, the applicant’s cousin came to his sister’s home with police looking for the applicant but he was warned and escaped by bus to Mirpur to stay with a friend for about three weeks.

5.His mother told him over the phone that his brother had been beaten in prison, charged with terrorism and bought before a court.  To save himself the applicant paid an Immigration officer to leave the country and on 9 October 2009 he flew to China before sneaking into Hong Kong by boat on 18 October 2009.

6.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”).

7.The adjudicator conducted an oral appeal hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and claim and in the main, accepted it as credible.  What he does not accept are the bare assertions such as the claim his brother has been arrested and falsely charged with terrorism.

8.The adjudicator then applied the law to the applicant’s evidence and found the applicant had not suffered any injuries or ill-treatment, be it physically or mentally that attained a minimum level of severity and had not been subjected to torture or CIDTP nor was he at any substantial risk of being subjected to torture or CIDTP in the future.  He had not been assaulted by anyone acting in an official capacity or with the consent or acquiescence of a public official.  He concluded that the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2 or a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Pakistan.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

9.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim 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.

10.The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86. The grounds in his affirmation appear directed at the adjudicator only, except for one ground against a decision maker I assume is the Director which was that it was unfair his BOR 2 risk claim was determined without an interview or hearing.

11.In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. The TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances don’t arise here.

12.The grounds in the applicant’s affirmation are not so clearly or coherently set out but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with Country of Origin (“COI”) information.  He cherry picked information that resulted in an unreasonable finding.  He failed to consider human rights abuses in Pakistan.

13.The adjudicator did consider COI information and found state protection did exist and is available.  He set out his findings and references in his decision.  The applicant did not claim there was a flagrant consistent pattern of gross mass violation of human rights but the adjudicator nevertheless addressed this clearly in paragraph 41.  There are no merits in these grounds.

14.He makes a complaint against the interpreter misinterpreting specifically the adjudicator’s invitation to the applicant to submit additional information regarding his BOR 2 risk; he therefore lost another chance to give further information. He says that he lost the first chance when he did not receive the Immigration Department’s letter to submit information if he wished. Yet, despite this misinterpretation he did provide additional information to the adjudicator; I am unsure what the complaint is.  There is no merit in this ground.  

15.The applicant feels totally aggrieved that his BOR 2 risk claim was refused without any interview.  The Director would have written to the applicant’s last known address and invited him to submit additional information if he wished within a specified time limit.  The Director then rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in his decision dated 12 May 2015.  There is no requirement for the Director to hold another interview especially where there is no additional information from the applicant.  He can rely on the interviews previously conducted.  In any event, BOR 2 was not relied upon by the applicant from the outset; meaning he did not put forward a claim he was at risk of harm from capital punishment inflicted by the government or faced harm from his government that would put his life at risk.  He was never saying that if refouled there was a real risk of a breach of BOR 2. There was no necessity of an oral hearing.  There is no merit in this ground.

16.The applicant dismisses the suggestion of relocation viability but this is a misguided ground because the adjudicator specifically did not consider relocation, see paragraphs 73‑75.  There was no necessity to consider internal relocation because the applicant had not established a real risk of persecution in his home area.  There was no merit in this ground.

17.The applicant then goes on to, it would appear, give new evidence.  His brother has been tortured because he refuses to divulge the applicant’s whereabouts.  It is unclear from the affirmation whether it is one or two of his brothers that have been tortured for this reason.  In any event, if this is evidence that was not before the adjudicator, it is not evidence I will take into account for an application of this nature.

18.The applicant has also asked me to take into account that he has married in Hong Kong and now has a child and they will face risks if he takes them back to Pakistan.  This factor, his change of circumstances since arriving in Hong Kong, is also not a consideration I will take into account either.

19.I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made 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.  This applies also to the Director’s decision.

20.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 30^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