Akhtar Kamran v. Director of Immigration / Torture Claims Appeal Board

HCAL 322/2017

[2018] HKCFI 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 322 OF 2017

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D E C I S I O N

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Introduction

1.This is an application for leave to apply for judicial review.  According to Form 86 filed by the applicant, the decision proposed to be challenged is that of the Torture Claims Appeal Board (“the board”) (which should be the decision dated 17 May 2017) (“the board’s decision”).

2.The earlier decision of the Director of Immigration (dated 16 April 2015) (“the Director’s decision”) dismissed the applicant’s non-refoulement claim whereas the board’s decision dismissed his appeal against the Director’s decision.

3.The Director’s decision is not challenged in Form 86 or the supporting affirmation.

Background

4.The board’s decision records that:

(a)   the applicant is a Pakistani national, born in March 1992;

(b)   the applicant refused to join a political party in October 2014 when he was in Pakistan.  He was later threatened, and also assaulted, by several people from that party;

(c)   the applicant wanted to report the threat to the police, but he was locked up by the police instead and framed for a drug-related crime.  He was detained for a few days before he was released;

(d)   in mid-October 2014, several people from the party fetched the applicant and assaulted him again.  They humiliated him in public and tied his hands.  He was hospitalized for several days as a result;

(e)   the applicant left his home and went to stay with his friend in Karachi, and later he went to China (and finally came to Hong Kong).

Grounds of this application

5.Contrary to the requirement of RHC Ord 53 r 3(2)(a)(iii) (Cap 4A), Form 86 does not state the grounds on which relief is sought by the applicant.

6.In a 5-page document exhibited to the applicant’s supporting affirmation, the applicant contends that:

(1)   the board failed to carry out sufficient research and inquiry into the country of origin conditions;

(2)   the board failed to sufficiently take into account, or place proper weight, on relevant country of origin information which was mentioned in the board’s decision;

(3)   the board failed to evaluate, or make a fact finding regarding, the facts presented by the applicant as assaults and torture he had suffered (and threats of death directed against him);

(4)   the board misdirected itself on the law in failing to consider or assess whether there existed state protection (the applicant’s reference to “Art 3, Torture and CIDTP” appears to be a reference to Art 3, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);

(5)   the interpreter misinterpreted the need for the applicant to respond to the Director’s invitation to submit additional facts and grounds;

(6)   the board approached the country of origin information selectively and it failed to address the negative aspects of such information;

(7)   because the attackers were members of a very strong political party which has killed many people, it is impossible for the applicant to be safe even if he had relocated.  Further, for the same reason, the board ought to have the applicant’s attackers to be part of “government officials”.

The board’s decision

7.In relation to the non-refoulement claim based on:

(a)   the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and s 37U, Immigration Ordinance (Cap 115) (“torture claim”);

(b)   Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) (or Art 7, International Covenant on Civil and Political Rights) (“cruel and inhuman treatment claim”);

(c)   Art 33, 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution claim”),

(after listing the above heads of claim) the applicant’s case was assessed separately under each head of claim in the board’s decision.

8.As regards the torture claim and cruel and inhuman treatment claim, the board concluded that:

(1)   the applicant’s injuries did not attain the level of severity to amount to “torture”;

(2)   there was no genuine and substantial risk of the applicant being subjected to ill-treatment;

(3)   there was no evidence the applicant’s attackers were acting in “official capacity”, or were acting in “ostensible exercise of public authority”;

(4)   state protection existed in Pakistan despite the applicant’s claimed unpleasant experience with the police;

(5)   there was no satisfactory evidence of the applicant being subject to a real, personal and foreseeable risk of torture (likewise, there was no evidence to show there were substantial grounds for believing that he would be subjected to such mistreatment).

9.As regards the persecution claim, the board concluded that:

(a)   the applicant was not a target of political persecution.  It also concluded that, judging from the past events described by the applicant, there was no well-founded fear of persecution;

(b)   there was no satisfactory evidence the applicant’s attackers were part of “the state”.

10.In coming to the above conclusions, so far as the relevant principles are concerned, the board’s decision has:

(1)   set out, or referred to, the relevant statutory provisions and conventions;

(2)   relied on some of the relevant principles laid down in earlier decisions;

(3)   given reasons for its assessment of the credibility of, or weight to be placed on, various parts of the applicant’s factual case.

11.In relation to the applicant’s contention summarized in para 6(1) to (3) and (6) above, the applicant has not particularized the manner in which allegedly the board has erred (save for making the general complaints summarized above) (such as what would constitute “sufficient” and/or “balanced” independent inquiries, or how the inquiries would affect the outcome of the applicant’s claim).

12.In this connection, I note that, as has been pointed out by the court of appeal in TK v Michael C Jenkins [2013] 1 HKC 526 (at para 19 to 27 thereof), a balanced view has to be taken as regards the notion of “procedural fairness” in this regard (and the applicant cannot “simply sit back” and merely asserts that more should have been done).

13.Further to the above is the fact that, even though the applicant has been afforded a hearing (so that his case could also be presented verbally), for his own reason he decided not to testify before the board.

14.With the above in mind, the board cannot properly be faulted for concluding against him as regards matters like the severity of the assaults, or the credibility (or reliability) of his alleged (perceived) substantial risk of persecution.

15.In relation to the allegation of the board having been “selective” in approaching the country of origin information (para 6(6) above):

(a)   it is within the board’s power, as a fact-finding tribunal, to decide whether to place more weight on some of the factual materials and less (or no) weight on other materials.  This cannot properly be viewed as being selective (an obvious example of being selective is this: in order to support its conclusion, a tribunal arbitrarily removes from its deliberation unsatisfactory part(s) of a single matter said to be supportive of its conclusion).  Here the board was faced with different aspects of the country of origin reports; some parts were favourable to the applicant’s claim while others were unfavourable.  In such a case, the board is bound to undertake an evaluation;

(b)   the board’s evaluation of the materials before it has not been shown to be unreasonable, or against the overall weight of the evidence.

16.In relation to the alleged misdirection on the law (para 6(4) above), the board’s decision:

(1)   has correctly identified and summarized the relevant principles (para 7 and 10 (especially para 10(1) to (2)) above);

(2)   has correctly applied the said principles to the materials which the board has accepted (para 11 to 14 above).

(whether as regards “state protection” or other legal issues)

17.In relation to the alleged misinterpretation (para 6(5) above), the assertion is again nonspecific.  The applicant asserts that the interpreter never mentioned the torture claim.  This is unlikely in view that the board’s decision has devoted about 8 pages (out of about 17 pages) to that aspect.

18.The applicant also asserts that he wrongly thought that there was no need to respond further to a letter from the Director dated 10 April 2017 (with a heading “Notice of Further Decision”) (para 6(5) above), but he blamed it on the wrong legal advice given to him.  Even if true, that cannot be a matter which the board should be held responsible for.

19.Finally, as regards the applicant’s internal relocation in Pakistan (para 6(7) above), that was not a matter which the board has determined, or relied upon (having rejected the applicant’s claim based on the matters summarized in para 8 to 14 above).  Because of the board’s findings (summarized in para 8(1) to (2) and (4) to (5)), whether the applicant’s attackers were “government officials” has no real importance.  In any event, the board’s decision has not been shown to be erroneous about that issue either (para 8(1), 9(b), 15(b) and 16(2) above).

Conclusion

20.By reason of the above matters, there is nothing in this application which is worthy of further consideration (the test for determining whether leave to apply should be given is reasonable arguability: Peter Po Fun Chan v Winnie CW Cheung & another (2007) 10 HKCFAR 676, para 15).

21.This application for leave is thus refused.

The applicant was not represented