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

HCAL503/2017

[2018] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 503 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 the Applicant being absent 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 last entered Hong Kong on 2 October 2001 and was permitted to remain for five days.  The applicant applied for several extensions of stay up until 15 January 2002.  He was refused any further extensions after his last application on 15 January and was requested to leave Hong Kong on or before 17 January 2002.  The applicant overstayed and was not arrested until over six years later on 28 April 2008.  He lodged a torture claim which was rejected by the Director of Immigration (“the Director”) on 7 February 2013.  On 19 April 2013 the applicant lodged a non-refoulement protection claim.  That was rejected by the Director on 19 April 2016 and 24 March 2017.

2.The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 7 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 9 August 2017 and requested an oral hearing which was set down on 16 January 2018.  The applicant was absent.  There were five attempts to call his mobile phone number recorded in his application form but there was no answer.

3.There was correspondence between the court and the applicant prior to the hearing date. On 31 October 2017 this court sent a letter to the applicant at the address he put down on his application form asking the applicant if he was represented or in the process of applying for legal aid.  The applicant replied on 7 November 2017 and inform the court that he was in the process of applying for legal aid.  He did not mention that he was moving house and changing addresses.  The court sent a notice of hearing dated 8 November 2017, the very next day to the applicant at the same address; informing the applicant that the hearing date was 16 January 2018.  I am satisfied that the notice of hearing was posted to the applicant’s correct address as supplied by him.  In view of the applicant’s absence, I will consider his application on the papers.

4.The basis of his claim was that he would be harmed or killed by Chaudhary Asghar (“CA”) and he feared arrest by the police because he was wanted for the murder of CA’s nephew, Kashif.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I will only summarise it here.

5.The applicant was born in 1977 in Lahore is single and had 12 years of education followed by three years of cricket training between 1997 in 2000.  The applicant said he joined the Pakistan Muslim League Nawaz party (“PMLN”) in 1999 which is now the ruling party in Pakistan.  Its main rival party is the Pakistan People’s Party (“PPP”). There were frequent physical clashes and confrontations during rallies between supporters of the two parties.  The applicant himself had been arrested by the police on three occasions in about 2001 for fighting; being involved in a fight between the two political parties.  He was released without charge on all three occasions.

6.On another occasion during a confrontation between 50 PMLN supporters of which the applicant was one of them and about 10 PPP supporters, a fight broke out. A PMLN supporter called Kamran pushed Kashif, a PPP supporter and neighbour of the applicant’s, against a wall and he fell to the ground unconscious.  He was taken away by other PPP supporters immediately.  He was the nephew of a rich and famous supporter of the PPP, CA.  CA was a violent person involved in nefarious illegal activities but was known to be connected to the police and political officials.

7.The applicant was scared when he saw that Kashif was injured and worried that CA would blame him.  He did not return home that day; he then found out that he had died.  The applicant immediately left home and took a bus to stay with his cousin for one night before moving to Islamabad to stay with a friend.  When he arrived there and called home, his mother told him that the police had been to their home and suspected the applicant was one of Kashif’s murderers.  He was wanted by the police.  The applicant could not surrender to the police because they would detain him and not believe that he was not involved.  His friend advised him to leave Pakistan and go to Hong Kong to seek protection like other friends.  He did not encounter any problem leaving Pakistan through the airport.  The applicant claims that the murder charge still exists and CA’s influence with the police would mean that the applicant would be framed for the murder if he returned.

8.The Director and the adjudicator of the TCAB analysed the applicant’s claim under three applicable grounds, his torture claim had been dealt with much earlier;

(a)   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”);

(b)   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

(c)   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”).

9.The adjudicator conducted an oral hearing and treated the appeal as a rehearing. The applicant elected to give evidence at the hearing.  The adjudicator set out the law and key legal principles applicable to the three grounds correctly.  He set out the applicant’s case and considered his credibility.  The adjudicator did not find the applicant a credible and genuine claimant and set out his reasons for this conclusion in his decision.

10.The applicant had come to seek protection in Hong Kong but did not seek protection as soon as he could after he arrived.  He asked for several extensions of his Visa which were granted and when there were no more extensions to remain here, he overstayed for over six years.  Only after he was arrested did he lodge a protection claim. There is no explanation as to why he did not lodge one six years earlier and the adjudicator, taking into account section 37ZD (1)(c)(i) of the Immigration Ordinance found that this fact damaged the credibility of the applicant.

11.The adjudicator also considered that there was no documentary evidence to suggest the applicant was a wanted person and noted he left Pakistan through the Immigration channels without being stopped.  Much of the evidence regarding this murder charge was hearsay from his mother; it in itself is not inadmissible but weight which can be attached to such evidence, is greatly reduced.  The evidence that CA was looking for him to kill him came from his sister.  On the whole, the applicant’s evidence very weak.

12.The adjudicator considered the applicant’s persecution risk and found that he could not prove a persecution risk for the purpose of a non-refoulement protection claim and in any event persons fleeing from prosecution or punishment are not normally refugees; a refugee is a victim of injustice and not a fugitive from justice.  Fleeing investigation and avoiding arrest does not entitle the applicant to protection.

13.The adjudicator considered the applicant’s BOR 3 risk and found the applicant could not invoke protection under this ground.  The applicant has never sustained injuries or ill-treatment, whether physical or mental that attained a minimum level of severity.  The adjudicator found the applicant did not face any genuine and substantial risk of being subjected to ill-treatment, torture or CIDTP if refouled to Pakistan.  His BOR 3 risk claim failed.

14.The applicant also failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated if refouled.  There was no evidence to show that there was a warrant out for his arrest and that he would be charged by the police.  There was no evidence to show that a death penalty would be imposed on the applicant if refouled.  His BOR 2 risk claim failed.  The adjudicator confirmed the decisions 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.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence.  I find no substance in the grounds of this application and supporting affirmation.  The applicant put forward three grounds and I find them all to be without merit.

16.In the first ground, the applicant suggests that the appeal bundle was served only days before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the applicant had his rights explained to him, adopted his previous evidence and non-refoulement claim form which were in the appeal bundle and elected to give evidence.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence and statements that was the appeal bundle. Moreover, his made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

17.In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  The adjudicator doubted his credibility because of his actions or rather inaction after he arrived in Hong Kong. He also found his evidence weak because of its almost entirely hearsay nature and bare assertions.  It had less to do with his answers.  There is no merit in this ground.

18.The third ground is a complaint that the adjudicator relied on country of origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  In fact, the adjudicator did not go into any such information because of his findings that the applicant was not credible nor a genuine claimant.  I find no merit in this ground.

19.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.

20.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, para 14-17.  I refuse leave to apply for judicial review.

Dated 7^th day of June 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