Iqbal Nasir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL531/2017

[2018] HKCFI 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 531 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 on 31 October 2009 only to be arrested immediately.  He then lodged a torture claim which later became a non-refoulement protection claim that included other applicable grounds.  That claim was rejected by the Director of Immigration (“the Director”) on 10 September 2015 and 9 December 2016.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 11 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 21 August 2017 and requested an oral hearing which was set down for 4 January 2018.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of the applicant’s claim was that if he returned to Pakistan he would be harmed or even killed by several men from the Pakistan Muslim League Nawaz Party (“PMLN”) because the applicant’s father filed a police report of his brother’s murder against them.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, there is no need to repeat it here.

3.The applicant had eight brothers and his family were supporters of the Pakistan People’s party.  In August 2009 his brother Bilal interfered in a family dispute of another family which turned physical but apparently a settlement was reached.  That family were supporters of the PMLN.  On the day of the settlement Bilal was attacked by that family instead and subsequently died in hospital.  The applicant’s family reported the matter to the police and named the murderers.

4.A week later, those murderers who were yet to be arrested by the police phoned the applicant’s father and warned him to withdraw the police report against them or all his sons would be killed.  The father reported these threats to the police but the murderers were still not located.  The applicant was worried that the police could not punish the murderers because the PMLN were in power and at the same time, could not offer the applicant and his family protection.  The family took the verbal threats seriously and sent the brothers out of Lahore and three out of Pakistan.  The three were travelling to Saudi Arabia, including the applicant but the travel agent made a mistake and sent the applicant alone to Mainland China. He went.  The applicant then entered Hong Kong illegally by boat.

5.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”).

6.The adjudicator conducted an oral appeal hearing and the applicant elected not to answer questions or give evidence.  The adjudicator set out the law and key legal principles applicable to the four grounds.  He then set out the applicant’s claim and his analysis of it.  He also set out the Country of Origin (“COI”) information that he relied on to ultimately find that State protection was available to the applicant if there was any risk if refouled.  He also found internal relocation a viable option without undue hardship within Pakistan.

7.The adjudicator made no finding as to credibility and appeared to accept the applicant was a general witness of truth.  He made the following observations; the applicant was never directly involved in any dispute, never received any physical injuries, the men he named as murderers had no official position in the PMLN, they were just supporters and he was never personally threatened by anyone, only his father was.  The adjudicator however did not believe there was a mistake made by the travel agent to send all three brothers to Saudi Arabia but sent the applicant to China instead with the wrong visa.  The adjudicator noted and the applicant confirmed that his other four brothers still lived in Lahore at peace and without problem.  The adjudicator concluded on the above facts that the applicant had no necessity to leave his own country in fear for his own safety or life.

8.The adjudicator applied the law to those findings and found on the applicant’s own facts, he was not able to establish within the definition of torture under section 37U of the Immigration Ordinance that severe pain or suffering had been inflicted on him by members of the PMLN and that there was a real risk of torture by the same members if he returned to Pakistan.  The adjudicator found that the applicant’s claim, on his own facts failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found his fear of ill-treatment did not fall within the definition of persecution and his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

9.The supporting affirmation lists several convoluted grounds for seeking leave including procedural impropriety, error/misdirection in law and irrationality.  The applicant also submits he never received a letter from the Immigration Department inviting him to submit any additional information to support a BOR 2 risk claim and his failure to submit further information was prejudiced.  There was no mention of this to the adjudicator in his appeal notice nor during the hearing; there is no record of it in the decision.

10.I do not need to go into the grounds of the applicant’s affirmation.  I will refer to the letter submitted by the applicant on the day of the oral hearing.  He requests the court to extend his time in Hong Kong because his family in Pakistan are dealing with his enemies and trying to reach a compromise.  Once his problem is resolved he will return home.  In open court the applicant confirmed that he needed another three to four months to resolve his issue before he can return home.

11.Having read this letter, I told the applicant that it did not constitute a ground for seeking leave.  I then asked the applicant if he only made this application for leave to apply for judicial review to extend his time in Hong Kong/to buy time and he replied in the affirmative.  He had no other submissions to make.

12.This admission from the applicant that he was making this application to buy time shows an abuse of the process.  It was a waste of judicial time and resources to deal with applications on this basis.  The applicant had no grounds with any merits to seek leave; he only wanted to extend his stay in Hong Kong for whatever his own reasons.

13.On his own admission, the applicant is unable to rely on any grounds that showed any errors of law by the adjudicator.  There was 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.

14.The applicant’s claim is not remotely reasonably arguable. It was by his own admission an abuse of process and a waste of this court’s resources. I refuse leave to apply for judicial review.

Dated 14^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