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

HCAL500/2017

[2018] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 500 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 29 August 2009 only to be arrested the next day.  He then lodged a non-refoulement protection claim with the Director of Immigration (“the Director”).  Since lodging that claim he has absconded from recognizance five times and been arrested by the Hong Kong police on each occasion.  Eventually the Director rejected his claim on 8 April 2016 and 9 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 28 July 2017. He then filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down on 2 January 2018.  The applicant appeared in person.

2.The basis of his claim was if he were to return to Pakistan he would be harmed or killed by family members of his girlfriend because they disapproved of their relationship; the applicant was a Sunni Muslim whilst she and her family were Shia Muslims.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need to summarise it here.

3.The applicant met his girlfriend in school when he was about 16 in 2003/2004 and they became lovers.  The applicant says her family already knew of and were prejudiced against his family because they were Sunni Muslims and this relationship was just an excuse to increase their hatred.  In 2004 there was an incident where the applicant with a group of fellow Sunni villagers had an argument with some Shia villagers that included some of his girlfriend’s family; her elder brother called Tariq and two cousins. They argue that Shia Muslims were better than Sunni Muslims and Sunnis should follow their religion.  The conversation ended in an argument and became physical but some elders stopped it becoming a full blown fight.

4.The following day the applicant was playing cricket when the cousin and some seven or eight Shia Muslims attacked him with hockey sticks and cricket bats.  He was beaten black and blue and his right ankle was dislocated.  He knew they were connected to the PMLN party but did not know their names.  He knew her elder brother was connected to the PMLN party.  He did not see his girlfriend again after this incident.

5.He did receive treatment at a clinic and his ankle was put in plaster.  His father did report the attack to the police but it was not registered.  The police told him the cousin was rich and powerful as well as connected to the police; he suggested the applicant should apologise to the cousin.  The applicant then knew his girlfriend’s family was rich, powerful and influential therefore the police would not help him.

6.The matter was brought before the village mediation committee but the girlfriend’s family accused the applicant of insulting their sect as a reason for beating him.  They demanded an apology from him. The applicant’s family was frightened of their influence and the applicant apologised to all the family members including the cousin and elder brother.  However, the apology was not accepted and they threatened to kill the applicant instead.  The applicant’s father was advised to disown the applicant and he did in front of the village chief; this was a tactic to secure the safety of the applicant and his family.

7.When the girlfriend’s family left, the village chief advised the applicant’s family to send him away for his own safety.  He told them that that family had previously attacked a young man and his family for a similar situation and fired gunshots at their home, killing a family member.  It was decided that the applicant should leave the village.  He left the following day for Lahore where a friend of his father’s employed him in a factory for two years until 2007.

8.The applicant did occasionally secretly visit his family but in 2007 there was an incident where the girlfriend’s family found out the applicant was still in contact with his family and coming home.  His parents had not disowned him.  The death threat was repeated and there was a threat to harm the family as well.  At the end of 2008 there was a conditional settlement but it was a trap and the applicant was kidnapped in March or April 2009 by the men of his girlfriend’s family.  He was taken to a farmhouse and tortured over a period of time.  He could not run away because they had cut his legs.  They then left him there and someone contacted his father to rescue him.

9.His father took him to Lahore immediately to a private clinic and he took weeks to recover from the torture.  His father confronted that family and they warned him that they would not give up on their threats and continue to harass the family.  Realising that they were serious, the family arranged for the applicant to leave Pakistan for Mainland China on 15 August 2009.

10.The Director and the adjudicator 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”).

11.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He set out the applicable law and key legal principles for the four grounds above.  He considered Country of Origin information and adopted the Director’s findings in the same regard.  He found that State protection was available if the applicant was at any risk.  He found internal relocation a viable option if it was necessary.  He considered the applicant’s claim and evidence as well as his credibility; his finding was that the applicant’s evidence was unreliable and inconsistent.  He set out his reasons for that conclusion in his decision.

12.He found the applicant’s evidence very vague, evasive and when he tried to elicit clarifications, he did not accept the applicant’s explanations.  He found the evidence based on speculation, bare assertions and hearsay that he could attached no weight to.  There was then the fact the applicant did not raise a torture claim as soon as he arrived in Hong Kong but only after his arrest.  There was his dishonest behaviour of absconding on five occasions from Immigration recognizance with woeful reasons for his behaviour.

13.The adjudicator did however go on to consider the four applicable grounds on the basis that the applicant’s evidence was true but found that even on the applicant’s own facts he could not succeed and establish a case of non-refoulement under any of the applicable grounds.  He considered the fact the applicant had lived and worked in Lahore for four years between 2005 and 2009 without any harm or trouble from anyone from his home village, his girlfriend’s family or the PMLN party.

14.On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by anyone acting in an official capacity and that there was a real risk of torture as defined if refouled to Pakistan.  The adjudicator found that the applicant’s claim, on his own facts, had failed to invoke the protection of BOR 2 or BOR 3; there was 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.  There was no real risk he would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.  Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did his evidence establish a persecution risk.  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 and the applicant’s submissions.  The adjudicator analysed the material, claim and evidence and then explained his findings.  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 applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  There is only one ground in his affirmation directed at the Director; he failed to give reasons for rejecting the applicant’s BOR 2 claim and failed to arrange an interview before that rejection.  I will refer to this ground later but it has no merit.

17.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.  Anyway, 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 do not arise here.

18.The supporting affirmation lists the following as grounds for seeking leave:

(1)  his lack of legal representation before TCAB/miscarriage of justice;

(2)  the lack of language assistance given to him;

(3)  Insufficient reason given for rejection of BOR 2 risk by the Director; and

(4)  procedural irregularity/no Immigration Department representative at the appeal.

19.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

20.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

21.The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his “Answer 35” of his non-refoulement claim form despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. That form was completed with the assistance of a legal representative and an interpreter.  During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly.  If there had, the applicant would have been able to particularise it.  There is no merit in this ground.

22.The applicant’s third ground although it is a complaint against the Director, I will still deal with it.  He suggests no reasons were given for rejecting the BOR 2 risk claim.  The notice clearly refers to the Director’s findings in his previous decision of 8 April 2016 and applies it to Article 2. He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision.  In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk.  Even if this was an application applicable to the Director, this ground would have no merit.

23.There are two parts to the applicant’s last ground.  He submits the Director rejected his BOR 2 claim without an interview and he assumed the applicant received the previous letter inviting him to submit information and was able to read, understand and interpret it.  The applicant admitted in open court that he did receive the letter and took it to a lawyer who told him that the date to reply to the letter had expired.  The applicant also said in court that he had asked the Immigration Department for an extension of time on many occasions so he could submit additional information to support a BOR 2 claim.  He even said that he had his lawyer make the request on his behalf but he was refused by the Immigration Department on many occasions.  He said the Immigration Department refused him/his lawyer orally not by letter.  He did agree however, this was not in his grounds in his affirmation but he did not know why.

24.I am sure if the applicant had a lawyer representing him privately then any request to the Immigration Department would have been done by correspondence and not orally.  If there had been a request for an extension of time to submit documents, then there must have been documents to submit; the applicant has not been able to particularise what they are to support that very specific ground.

25.The second part to this ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing.  The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused.  In open court the applicant said this ground meant that it was unfair he was not given a lawyer to represent him during the appeal.  He then added that the duty lawyer service had represented him badly, not presented his case word for word but had only paraphrased it.

26.In submissions during the oral hearing the applicant added that his BOR 2 claim was not properly considered and that he was not properly represented by an able lawyer.  These grounds have not been particularised nor have any merit.

27.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.  The same applies to the decision of the Director.

28.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 11^th day of May 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