Rizwan Raja v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL557/2017

[2018] HKCFI 1268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 557 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 arrived here in Hong Kong illegally on 16 November 2013 only to be arrested on same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 5 January 2016 and 5 January 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 2 June 2017.  He then filed a notice of application for leave to apply for judicial review on 25 August 2017.  He requested an oral hearing which was set down for 29 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 the family of his paternal uncle because of ongoing disputes that started with the applicant’s late father.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

3.The applicant’s late father used to farm a piece of land that he rented which happened to be adjacent to land owned by his brother who had three sons.  The applicant’s paternal uncle was wealthy and politically connected; he employed people to farm his land for him.  The applicant’s father disapproved of his brother and his nephews because they were often drunk which was against the Muslim religion.  He disliked them all intensely and the feeling was mutual.  The applicant said that his cousin killed his father with a gun in mid‑2009 because of their animosity and because they argued over water flowing from his land into his brother’s land.

4.Days after murdering his father, the applicant’s cousins approached him and the applicant was attacked with wooden sticks until neighbours intervened.  He did not report this attack to the police because he had no money to bribe the police.  A fellow villager told the applicant that his cousin who had killed his father threatened to kill the applicant the next time he saw him.  The applicant’s maternal uncle took the applicant to Rawalpindi a few days after this attack on him to keep them safe.  The applicant stayed with his uncle until left Pakistan for Hong Kong in 2013, some four years later.

5.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”).

6.The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  She correctly set out the law and key legal principles applicable to the four grounds in her decision.  The applicant complained that he had not received any correspondence from the Immigration Department inviting him to submit additional information to support a BOR 2 risk claim.  The applicant accepted that the Director’s decision to reject his BOR 2 risk claim was in the appeal bundle.  The adjudicator had the interpreter read that decision to him and the adjudicator very fairly asked the applicant whether he had any additional grounds and/or information he wished to submit to support a BOR 2 risk claim.  The applicant said he had none nor could he get any documents from Pakistan.

7.The adjudicator set out the applicant’s evidence and her analysis of it.  She found a large number of inconsistencies between evidence he gave to the Director in the past and his evidence at the oral hearing.  She set out those inconsistencies in her decision.  She found that he contradicted himself in many material aspects and they were clearly not related to a poor memory or recollection.  She concluded that his evidence was inconsistent and exaggerated which rendered the applicant’s case implausible and unreliable.

8.She concluded that the applicant’s claim at most related to a dispute over the irrigation of his father’s farm land which overflowed into his uncle’s land and a deep-seated family disapproval of his uncle and his sons drinking habits.  It had nothing to do with party politics.   She found that in light of his inconsistent and implausible evidence, 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 purposes of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

9.I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in the oral hearing.  I find the adjudicator’s decision to be without fault.  She analysed material, the claim and his evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.  There is no substance in the grounds of this application.

10.The applicant did submit a photograph of a police report that the applicant says related to the police report he had made when his father was shot.  He said the police did not accept it or do anything about investigating his murder.  The applicant says he only recently received that report and it was not placed before or submitted and considered by the Director or the adjudicator of the TCAB.  I explained to the applicant that new evidence not considered by the adjudicator would not be considered by this court in an application for leave to apply for judicial review of that adjudicator’s decision.  I advised him to approach the Director of Immigration if he had grounds for another claim.  I note that the applicant had never even mentioned a police report to the Director or the adjudicator of the TCAB.

11.In the supporting affirmation the grounds are convoluted and not so easy to decipher but the applicant accuses the Director of procedural impropriety, error in law and a failure to consider Country of Origin information objectively.  The adjudicator is accused of failing to consider State protection properly and failing to consider human rights abuses in Pakistan.  There are no particulars to support any of the grounds put forward by the applicant.

12.There are accusations that the adjudicator has failed to consider the behaviour of the police who did not investigate the applicant’s father’s murder.  There is no mention that the applicant reported his father’s murder in the adjudicator’s decision.  There are criticisms of the adjudicator’s findings such as her finding that he faced no genuine and substantial risk of being subjected to torture.  The adjudicator has given full reasons for her findings which I find reasonable.  She gave full reasons for not believing the applicant.  I would not interfere with any of her findings.

13.I see no fault in her decision nor any 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.

14.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 14^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