Ahmad Hassan v. Torture Claims Appeal Board and Another

HCAL 808/2017

[2018] HKCFI 1312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 808 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 22 June 2009 and was arrested by the police on 23 October 2009.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 26 October 2009 with the Department on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan People’s Party (“PPP”).

2.The applicant was born and raised in Tehseel Pindi Bhatian, District Hafizabad, Punjab, Pakistan where his parents still live.  After leaving school he started supporting the political party Pakistan Muslim League (Q) (“PML(Q)”) and in 2007 assisted in the election campaign of his uncle who was a PML(Q) member and a candidate for the Union Council in Hajipura. The applicant did not hold any official position in PML(Q) but was active in organizing meetings and rallies for the party during which he had been involved in clashes with supporters of opposing party PPP.

3.One day in April 2008 after another clash between supporters of the two parties, PPP made a false claim to the police against the applicant and some other members of PML(Q) for breaching the peace and disturbing their meeting, of which the police did not do anything but just asked the applicant to resolve the dispute with the PPP people.  A few days later several members of PPP approached the applicant and asked him to leave PML(Q) and to join their party but the applicant refused.

4.Two months later police came to the applicant’s home and told him that PPP had made another complaint against him but the applicant was just told to resolve the dispute with the PPP people, but in June 2008 when the applicant was visiting friends in Gujrat, he was told by his family that the police had come again looking for him on another false claim filed by the PPP people, and was advised not to come home but to stay in Gujrat and to apply for his passport to leave Pakistan for his safety.

5.In March 2009 as the applicant felt it was no longer safe in Gujrat, he moved to Faisalabad to wait for his visa for China, and on 11 June 2009 he departed Pakistan for Bangkok and then to China, and from there he sneaked into Hong Kong where he subsequently lodged his non-refoulement claim for which he completed his Non-refoulement Claim Form on 3 October 2014 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 16 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.In his decision the Director found on the facts of the applicant’s case no substantial grounds for believing that there will be any real risk of him being harmed by the PPP people upon his return to Pakistan given the fact that he had never experienced any actual physical harm from them other than some verbal threats, that in the absence of any reliable evidence that the state or police were involved in these threats that state protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a large territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas away from his home district such as Islamabad where he can live and work free of any threats from the PPP people.

8.On 30 June 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 22 September 2017 before the Board during which he however only confirmed the evidence previously given to the Director and the materials in the hearing bundle before the Board but declined to give any further evidence or to answer any questions from the adjudicator for the Board.  On 17 October 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found it necessary to ask the applicant questions to clarify various aspects of his claims and to test their veracity but given his refusal to testify during the oral hearing or to answer any questions from the adjudicator, the Board was not satisfied on the evidence before it that the applicant was at any time sought by the PPP people or any political parties in Pakistan, or that there were any false claims being made against him by PPP or the police, or that there are any substantial grounds for believing that he would be at risk of any harm upon his return to Pakistan.

10.On 25 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)     failure of the Director to take proper account or consideration of his claim; 

(2)     failure of the Director to give proper or sufficient consideration of COI in the assessment of effectiveness of state or police protection to him upon his return to Pakistan;

(3)     failure of the Director to properly consider the serious problems of human rights in Pakistan;

(4)     failure of the Director to apply high standard of fairness in the consideration of his claim;

(5)     failure of the Board to make proper or sufficient inquiry in consideration of his claim or to give him sufficient opportunity to present additional evidence in support of his claim. 

11.These are all very broad and vague assertions of the applicant containing just key words or phrases but without any particulars or specifics or elaborations as to exactly how the Director or the Board had erred in their use of COI in their assessments of the situations in Pakistan or in their consideration of his claim in their decisions.

12.Given the fact that his claim was rejected by the Board basically on his credibility, and that it is well established principle that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision makers, and the fact that the applicant had declined to give any evidence or even to answer any questions at his oral hearing before the Board despite being invited and advised by the adjudicator to do so, I fail to see any merits in any of his complaints or how in the circumstances these grounds of his can reasonably be argued for his intended challenge.

13.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

14.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 15^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