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

HCAL538/2017

[2018] HKCFI 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 538 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 entered Hong Kong illegally and was arrested by the police on 30 September 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 18 January 2016 and 31 March 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 4 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 22 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 that if he were to return to Pakistan he would be harmed or killed by S. Mohammed because of a land dispute.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I intend only to summarise it here.

3.The applicant was born in the Punjab, is single, worked as an electrician and in 2006 his father transferred the ownership of a piece of land into his name.  Mohammed owned a piece of farmland adjacent to the applicant’s but the applicant’s land was more accessible to the road which Mohammed coveted.  He was a senior leader of the Pakistan People’s Party (“PPP”).

4.The applicant’s problems began in 2008 when Mohammed claimed ownership of the applicant’s land and claimed he had a deed that proved it.  He visited the applicant with two or three men and showed him the deed.  When the applicant refuted that claim he was beaten by Mohamed and his men; he woke up in hospital with a fractured arm and cut over his eye.  The applicant and his family reported Mohammed to the police and showed them their legal title to the land but the police said Mohammed’s document was genuine not theirs.  Nonetheless, they continue to farm the land as usual despite what the police told them.

5.Nothing happened until April 2009 when Mohammed’s men visited the applicant and demanded he hand over the land deed to them and get off the land immediately.  The applicant felt his life was in danger so he took the land deed and travel to Karachi during that summer and lived with his uncle until late 2012.  When he returned home, he found a wall had been built on his land and he was told it was built by Mohamed.  He ignored his family who told him not to confront Mohammed and he hired a tractor to demolish the wall so he could farm the land again.  Two days later, a man he assumed was associated with Mohammed told him that if he was seen again then Mohammed would kill him.

6.The applicant believed this threat and travelled to his uncle’s home which was about two hours away and stayed there for about eight months before he left Pakistan in late September 2013.  He was told that Mohammed’s men kept asking about the land document after he left his village having demolish the wall.

7.The Director and the adjudicator of the TCAB 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 conducted an oral 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 as well as the burden of proof and standard of proof in such claims.  There are supporting documents purporting to be a copy of the title deeds of the land and an affidavit by his father.

9.The applicant elected not to give evidence or answer any questions even when the adjudicator indicated that there were issues that require clarification.  In the adjudicator’s decision when he sets out the claimant’s case he also sets out the claimant’s inconsistencies and issues that led him to question his credibility.  Those include conceding he falsely represented to the Immigration Department that a gun had been put to his head during an incident in April 2009, saying he lived with his uncle in Haroon village for eight months before leaving Pakistan which was around two hours away by bus when the adjudicator could see on the Internet that it was 7 km from his village and why he visited China for a week sightseeing in early September 2013 before he left Pakistan in late September 2013 in fear of his life and headed for Hong Kong to seek protection.

10.Other issues that troubled the adjudicator included the authenticity of some of the documents; he questioned the different signatures on the stamps.  In another written statement the applicant had declared his grounds for non-removal is being in fear of his father’s enemy which is inconsistent with the grounds advanced by him in other documents.

11.The adjudicator found that there were many issues that led him to question the credibility of the claimant and in the absence of oral evidence from him, the adjudicator was unable to determine the issue of credibility one way or the other.  Under such circumstances, the TCAB was unable to determine whether he was at real risk of ill-treatment if refouled to Pakistan.  Therefore, the applicant had failed to establish, even to the low standard required, that he would suffer ill-treatment of any sort if refouled.  The adjudicator could only find the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.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.

13.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 arrange an interview before rejecting the applicant’s BOR 2 claim and failed to give reasons for that rejection.  I will refer to this ground later but it has no merit.

14.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.

15.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/inability to read Immigration Department letter/procedural unfairness;

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

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

16.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”.

17.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.

18.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 or complaint.

19.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 18 January 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.

20.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 receive 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 said he took it to his Immigration case officer so he could explain it to him but he gave it back to him and gave him an appeal date.  He then confirmed that that was his BOR 2 claim rejection letter.  When this court tried to clarify with him that the affirmation was referring to the Immigration Department’s letter inviting him to submit information to support a BOR 2 claim, the applicant said he had no recollection of it because it was a long time ago.

21.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.  There is no procedural impropriety or unfairness to the applicant.  There is no merit in this ground.

22.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.

23.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