Idrees Faisal and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL554/2017

[2018] HKCFI 1163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 554 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 Applicants 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 applicants are a family of six from India and the first five applicants arrived in Hong Kong on 20 June 2013 and were permitted to remain for seven days.  The applicants did not leave Hong Kong and overstayed since 28 June 2013.  On that same day they surrendered to the Immigration Department and later lodged a non-refoulement protection claims.  On 30 December 2014 the 1^st and 2^nd applicants, husband-and-wife had a fourth child in Hong Kong, the 6^th applicant, a son.  The 1^st applicant later lodged a claim on behalf of this fourth child.

2.The Director of Immigration (“the Director”) rejected all six applicants’ claims on 4 December 2015 and 13 February 2017.  The applicants lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected their appeals on 28 July 2017.  They then filed a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing.  The hearing was set down for 12 January 2018 and all applicants appeared in person having had their applications for legal aid refused.

3.The basis of their claim is that if they were to return to Pakistan they would be harmed or killed by Amanullah who was president of the Pakistan Muslim League Quaid-e-Azam (“PML Q”) with the assistance of Muttahida Qaumi Movement (“MQM”) and the land Mafia.  The 1^st applicant claims that Amanullah blamed him for losing a civil property case which resulted in financial and reputational loss.  The second fear was that his family would be harmed by Shia extremists because they were Sunni Muslims.  The Director and the adjudicator of the TCAB set out their claims and evidence in full and in detail in their decisions therefore, I only need summarise it here.

4.The 1^st applicant was born in 1973 and had four children by his first wife who then moved to Karachi.  The applicant married his cousin the 2^nd applicant in 1998 and the 3^rd, 4^th and 5^th applicants were all born in Pakistan.  The 3^rd and 4^th applicants were popular TV child actors in Pakistan.  Their family were all Sunni Muslims and Sheikh by cast.  Before leaving Pakistan they all lived in Karachi together with the 1^st applicant’s parents.  In 2004/5 the 1^st applicant joined a yarn trading company (“IAPL”) as an assistant accountant.  At the same time, he and the 2^nd applicant were studying to be homeopathic doctors.  They qualified and opened, a clinic in their home.  They had to close it down in 2009 when the applicants’ safety became threatened.

5.In 2007 the 1^st applicant was promoted to position of manager in the field office in Karachi.  His problems began in 2007 when some men approached him seeking to claim ownership of the field office on behalf of Amanullah.  The 1^st applicant told them to contact the head office because he was a mere employee and did not hold the legal title to the property.  The men kept coming between 2008 and 2009 to claim ownership of the office and made threats to harm the 1^st applicant if he refused to hand over the office.

6.In November 2007 there was a kidnapping attempt when the 1^st applicant was with the 2^nd applicant and two sons.  Two men on a motorbike approached their vehicle with one pointing a pistol at the 1^st applicant and shouting to his colleague to get into the car and grabbed the children.  The kidnapping attempt was foiled by the doors of the vehicle being locked and neighbours thwarting the attempt.  The applicant did lodge a complaint to the police station and a first information report (“FIR”) was registered but it did not mention a kidnapping attempt.  The 1^st applicant accuses the police of failing to accurately report his complaint and in fact harassed and threatened him and his family; eventually making him sign a false FIR.  The applicant has no idea why the police acted in this way.  Once he signed it out of fear for his safety, the police did not harass any more.

7.In 2009 a man hired by Amanullah entered the applicant’s office and beat him with an iron rod who then told him that if he did not hand over the field office he would kill the 1^st applicant the next time he came.  The applicant received medical attention in a hospital for his bruises and wounds; his injuries took a very long time to recover.  A year later, Amanullah came personally to the 1^st applicant’s office with three bodyguards armed with automatic firearms.  He told the 1^st applicant that he had orchestrated the kidnapping attempt in 2007 and the attack on him in his office in 2009.  They told him that they would kill him if he continued to resist their demands.

8.In May 2010 Amanullah forcibly took over the premises, refused to allow the 1^st applicant to enter and had police guard the premises.  The police refused to listen to the 1^st applicant or file a complaint of illegal occupation.  It led to a court case and the 1^st applicant was under such great stress that he suffered two heart attacks and required surgery.  Amanullah falsely told the applicant’s employers that he had handed over the premises to him.  His employers blamed the 1^st applicant for the problems.  The applicant gave evidence against Amanullah and the trespasses and asked for court protection but did not receive any.  The case dragged on and the applicant was constantly threatened with death if he gave evidence in court.  He even curtailed his children’s acting careers to keep them safe.

9.The 1^st applicant claims that Amanullah was the president of PMLQ Karachi division and very powerful.  His party targeted Punjabis and had a close ally in the MQM.  The MQM created widespread political violence in Karachi; targeting and killing many professionals such as doctors and lawyers.  They also organised sectarian killings between Sunnis and Shias.

10.In 2011 due to the immense pressure and fear the 1^st applicant was under, he moved back to Faisalabad with his family which was some 24 hours away by train.  Even there he continued to receive threatening phone calls from anonymous callers.  They threatened to locate him and hurt him, these calls continued even when he changed his mobile phone number.  Because they had no financial assistance they only stayed for about eight weeks before moving back to Karachi.  There the threats continued and the applicant’s father and family would not allow the 1^st applicant to attend any further court hearings because of the threats.  Armed men were outside his home from the MQM to prevent him going to court.

11.Even though he was prevented from going to court to give evidence his employers won the court case which made Amanullah very angry.  The threats continued even after the court case was over.

12.The other fear the applicants had were from Shia extremists but unknown people; professionals were being targeted and whenever there was violence the applicants hid at home from the Shia extremists.  The threat was nationwide so internal relocation was not a viable option.  The applicant believe that the police would not protect him because they knew that he had given evidence against the PMLQ.  The applicant had made police reports and then had complained about the police inaction but to no avail.  The applicants fled Pakistan in June 2013 because they felt that their lives were in danger.  The applicant’s brother, wife and child were harassed by the 1^st applicant’s enemies and his brother and wife were assaulted by them.  They then followed the 1^st applicant and his family to Hong Kong to escape from the danger.

13.The adjudicator, as did the Director, 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”).

14.The adjudicator conducted an oral appeal hearing and treated the appeal as a rehearing.  He currently set out the law and key legal principles applicable to the four grounds.  He set out the applicants’ evidence and claim and his analysis of it.  The 1^st applicant’s brother gave evidence on his behalf and the adjudicator set out his evidence as well.

15.The adjudicator found the evidence of the 1^st applicant and his brother unreliable and inconsistent.  He found glaring contradictions between their statements that they made to the Immigration Department.  He found obvious contradictions between the evidence of the two brothers in relation to injuries sustained by the 1^st applicant and the date they were sustained when he attended court.  The adjudicator found that the accounts given by the 1^st applicant and his brother could not be reconciled; it was not merely a failure to correctly recall dates of certain events.  This was despite the fact that they lived together under the same roof during the material time, between 2007 and 2013.  The adjudicator set out in his decision all the contradictions which led to his finding.

16.The adjudicator could not understand why the 1^st applicant did not move his family back to Faisalabad permanently if they suffered as he alleged.  He was only an employee who should not have been the target of his alleged enemies.  The adjudicator found that the 1^st applicant as well as his wife the 2^nd applicant were well qualified and in a good position to support themselves in Faisalabad where his enemies had no influence.  It was a city in the heart of the Punjab and the ruling party in Pakistan at the time was the PML N, not the PMLQ.

17.The adjudicator had no doubt that the applicants were not telling the truth and had greatly exaggerated claims to support a very weak case for non-refoulement protection.  He did not believe that they were genuine claimants.

18.The adjudicator applied the law and key legal principles to all four applicable grounds and found that the applicants had failed to establish a claim under any ground.  In view of his finding that they were not genuine claimants, he found no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance; their torture risk claim failed.  The adjudicator found no evidence of any real risk to the applicants’ right to life or that they would face the prospect of torture or CIDTP; their BOR 2 and BOR 3 risk claims failed. Lastly, he found that the applicants could not establish they had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if they were refouled to Pakistan; their persecution risk claim failed.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

19.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the submissions made on behalf of all the applicants.  The adjudicator analysed the material, claim and evidence and then explained his findings.  The applicants’ complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

20.The applicants have proposed both the Director and the TCAB as respondents in their Form 86.  There are only two grounds in his affirmation directed at the Director; he failed to properly consider the extended concept of State acquiescence and he failed to properly consider COI and therefore wrongly concluded there was state protection available to the applicants if they were at risk.  I will refer to these grounds later but they have no merit.

21.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 applicants have 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 applicants would have covered all mistakes they 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 their 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.

22.The grounds against the adjudicator are that he failed to make sufficient enquiry before his decision, he failed to take into account the seriousness of the threats received by the applicants as well as the contents and relevance of the medical reports submitted.

23.Having read the adjudicator’s decision, I am satisfied that he took into account and considered the evidence and case of the applicants in its entirety.  This means he did take into account the threats received by the applicants as well as the contents of any document submitted before he made any decision.  In fact, he repeats the contents of the medical report.  He evaluated the evidence and gave reasons for his findings; findings I will not disturb.  There are no merits in the grounds against the adjudicator.

24.Despite my stance above, even if the Director could be or was a respondent, the Director found the claims did not amount to torture and/or CIDTP and/or persecution.  The applicants did not rely on the extended concept of State acquiescence.  The Director concluded that there was no evidence that State authorities or others acting in an official capacity knew or had reasonable ground to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.

25.As for the criticism that the Director did not properly consider COI objectively before concluding there was state protection, I am satisfied from reading his decision that he considered relevant and up-to-date COI objectively before he made such a finding.  I will not interfere with that finding.  There are no merits in the grounds against the Director.

26.I do not find any ground that shows there was an error of law made 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.  This applies also to the Director’s decision.

27.In my judgement, the applicants’ claim is not reasonably arguable.  There is no realistic prospect of success therefore, 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