Raza Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL652/2017

[2018] HKCFI 1420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 652 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 by boat on 1 June 2015 and then surrendered himself to the Immigration Department 15 days later.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 9 May 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 1 September 2013.  The applicant filed a notice of application for leave to apply for judicial review on 19 September 2017.  He requested an oral hearing and appeared in person on 9 February 2018 having had his application for legal aid refused.

2.The basis of his claim is that if he were to return to Pakistan he would be harmed or even killed by the Irfan and Adnan brothers (“Irfan and Adnan”) because he had a fight with Adnan during a cricket match and hurt him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

3.The applicant was born in 1994 and the eldest of four children, he received eight years of education and worked as a shopkeeper in a grocery shop for two years from 2008.  After that he was unemployed.  Adnan and Irfan were brothers and his next-door neighbours; they were from a wealthy and politically connected family.  The applicant played cricket every week and one afternoon in April 2015 he was playing cricket against Adnan and his friends in the village.  During the match the applicant and Adnan argued, became physical and both use cricket bats to hit each other. Adnan was the more seriously injured and bled from wounds on his head and arm.  He was taken to hospital by his friends.  The applicant was not seriously injured but had cuts that did not require hospitalisation.

4.Two days later, the applicant was ambushed by five or six men, some of whom were Adnan’s friends.  Some were carrying hockey sticks and threatened to kill the applicant because he had seriously injured Adnan before they beat him for several minutes.  They stopped when passers-by intervened but warned the applicant that they would kill him.  The applicant had to be taken to a doctor who treated him before he went home to recover.  The applicant did not report this attack to the police because he assumed that was the end of the matter.

5.However, he was attacked again by Adnan’s friends only four or five days later.  The applicant luckily saw them coming towards him and ran for his life.  He ran for about 15 minutes towards home and they could not catch him.  He heard them yelling threats to kill him.  The applicant did not report this to the police because they would ask him for money and he assumed Adnan’s family had close ties with the police.

6.The applicant told his parents and they decided to send him away for his own safety.  A friend organised travel arrangements to China for Rs. 100,000 but whilst the Visa was processed, the applicant moved to Lahore immediately.  He remained there without harassment or confrontation until he left Pakistan on 22 May 2015. His passport had already been issued on 28 January 2015 because he had intended to go to Dubai to work.  He did not seek asylum in China because he did not know that he could but a Pakistani man he met told him he could help him travel to Hong Kong where he could seek protection.  The applicant is no longer in contact with any of his family in Pakistan but the friend who arranged his travel to China warned him that Adnan and his brother Irfan often asked villagers for the applicant’s whereabouts.

7.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”).

8.The adjudicator treated the appeal as a rehearing and correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s case and evidence, including the evidence he elected to give during the appeal.  The adjudicator found discrepancies in the applicant’s evidence and asked for explanations.

9.The adjudicator considered the applicant’s credibility and found his evidence relating to the attacks by Adnan’s friends was impossible, incredible and implausible.  He did not believe there was any intent by anyone to assault or kill the applicant when Adnan and his brother were neighbours and knew where the applicant lived.  If there was such a real intent, they would have simply gone next door to the applicant’s home.  During the second incident, the applicant said he ran home but they did not follow.  During the appeal the applicant explained that Adnan, his brother nor his friends were allowed to enter the applicant’s home.  The adjudicator asked if that explanation meant the attackers were allowed to assault him in the street but not allowed to enter his home to assault him and he replied in the affirmative which makes no sense.

10.His evidence as to whether or not he went to the police or why he would not go to the police if he did not, was inconsistent and full of discrepancies.  He has said that he did not make any police report but has also said in direct contradiction that he did but could not remember the name of the police station where the officers required him to pay money.  When asked which version of his evidence was correct the applicant told the adjudicator that he did not want to answer his question.  The adjudicator concluded that the applicant had invented this part of his evidence as well.  There were other discrepancies the adjudicator highlighted such as the applicant’s evidence that he said he stayed in mainland China for eight days and then said later he stayed for 18 days.  He explained that this discrepancy was because of a lapse in time; the adjudicator suspected it was because he had concocted his evidence and not committed it to memory.

11.The adjudicator found too many inconsistencies, discrepancies and contradictions for them to be due to a lapse in memory or the passage of time; he did not believe the applicant was a genuine claimant.  He found no evidence to support his claim.

12.The adjudicator then proceeded to assess the applicant’s claim as if his evidence was credible and the truth.  He went on to conclude that on the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by anyone acting in an official capacity and that there was a real risk of torture as defined if refouled to Pakistan.  The adjudicator found that the applicant’s claim, on his own facts, had failed to invoke the protection of BOR 2 or BOR 3; there was no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  There was no real risk he would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.  Lastly the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did his evidence establish a persecution risk.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

14.In the first ground, the applicant suggests that the appeal bundle was served 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.  There is no record in the adjudicator’s decision 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, statements and the Director’s submissions that was in the appeal bundle.  During the oral hearing the applicant explained that he did not know he could ask for assistance from the interpreter.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

15.In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he had not had the appeal bundle translated to him.  During the oral hearing, I confirmed with the applicant that his second ground was a complaint that because no one interpreted the appeal bundle to him, he made mistakes in answering questions which led the adjudicator to not believe him.  However, this does not explain why when he was asked about discrepancies, he did not inform the adjudicator or the interpreter that the discrepancies arose because he had forgotten the contents of his previous statements and evidence.

16.Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

17.The third ground is a complaint that the adjudicator did not inform the applicant that he could make a complaint about the appeal process.  The applicant submits that he was not legally represented during the appeal hearing and did not know that he could complain about the appeal process.  Again, I note there is not one word of complaint during the appeal hearing.  I find no merit in this ground.

18.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.

19.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, paras 14-17. I refuse leave to apply for judicial review.

Dated 5^th day of July 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