Sheraz Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL589/2017

[2018] HKCFI 1442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 589 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 21 March 2008 and was arrested by the police on 27 May 2008.  After his arrest he lodged a torture claim which later under the unified screening mechanism was assessed on all applicable grounds.  This claim was rejected by the Director of Immigration (“the Director”) on 12 December 2016.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 31 August 2017.  He then filed a notice of application for leave to apply for judicial review on 6 September 2017 and requested an oral hearing; he appeared in person on 21 February 2018.

2.The basis of his claim was that if he were to return to Pakistan he would be harmed or even killed by family members of his girlfriend Ayesha because they disapproved of their relationship.  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 met Ayesha in 2005 and fell in love, they even planned to marry.  She comes from a wealthy family who are politically connected whereas the applicant is poor although he is educated, has a degree and even started a Masters but did not complete it.  By the end of 2005 her parents found out about the relationship; her mother slapped and punched Ayesha and went to the applicant’s home to threaten his parents.  They were told the relationship was forbidden.  The applicant did not contact her as her parents requested but it was Ayesha who called him in mid-2006 and said she could not live without him.  They started to call each other but did not meet in person.

4.In early 2007 Ayesha visited the applicant with her cousin but a few days later the applicant was beaten up by her brothers and cousins with iron rods and he required stitches to his chin.  He did not tell Ayesha about this attack nor did he tell the police because her family were so powerful.  He did stop contacting her for about six months whilst her brothers sent messages to the applicant’s family threatening to kill the applicant if he saw their sister again.  The same message was sent to the applicant at university.  As a result of the harassment the applicant dropped out of university.

5.On 14 February 2008 Ayesha arranged to meet the applicant at an ice cream parlour when she had told her family she was going to her cousin’s party.  Whilst at the ice cream parlour her cousin called Ayesha and told her that her brothers knew she was not at the party. She was so worried she left and immediately went to the party.  Her brother knew she had seen the applicant and beat her.  The applicant immediately went to his friend’s house.  That evening her three brothers went to the applicant’s home and fired live bullets into the air, threatening to kill him if they saw him.  No one was hurt.  The applicant did not return home and was advised to go to another city.

6.He hid at an uncle’s house which was an hour and a half away for a week.  Since Ayesha’s brothers knew he had relatives there, the applicant did not feel safe so he travelled to another town some eight hours away and lived there for two weeks.  After that he moved to his grandmother’s home but Ayesha’s relatives came to know of his whereabouts and visited his grandmother’s home.  She was home alone and they damaged part of her house.  The applicant did not feel safe in the village and hid for two days before leaving Pakistan on 18 March 2008.

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 conducted an oral appeal hearing and treated it as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and claim and considered the standard and burden of proof in such claims.  He considered the applicant’s documentary evidence which consisted of love letters and a medical report.  He questioned the applicant extensively as to how he obtained those documents whilst he was in Hong Kong and was not satisfied with the explanations, noting the discrepancies between his answers in the appeal hearing and his previous evidence.  The adjudicator did not believe those letters came from Ayesha after nearly 10 years apart.

9.The adjudicator considered the story spun by the applicant, Country of Origin information specific to honour killings in Pakistani culture and arranged marriages and set out in great detail why he did not believe the applicant was credible.  He took the view that if Ayesha’s family believed their relationship was more than platonic they would have killed her and had plenty of opportunity to kill him.  Since they had not taken the drastic steps of honour killings and nearly 10 years had passed then it was most likely Ayesha would have been subjected to an arranged marriage.  Those love letters were obviously falsely drafted to bolster a false claim.  The adjudicator did not believe the applicant and he did not believe Ayesha existed.  This means he did not believe that the applicant was a genuine claimant.

10.In his decision, the adjudicator gave full reasons for his conclusion.  He found 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 purpose of a non-refoulement protection claim.  He noted that even if he was telling the truth, on his own facts the applicant was not able to make out a case for non-refoulement protection.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

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

12.The applicant has proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  Yet, there are no grounds in his affirmation directed at the Director.  The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;

(2) the lack of language assistance given to him/inability to read Immigration Department letter/procedural unfairness;

(3) A lack of communication /BOR 2 letters from Immigration Department; and

(4) procedural irregularity/no Immigration department representative at the appeal.

13.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

14.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

15.The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his non-refoulement claim form despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. However, there was clearly no merit in this ground when the applicant said during the oral hearing that he had not yet asked the duty lawyer service for a translated copy of his form.

16.The applicant’s third ground is also without merit and struck out during the oral hearing.  He accuses the Immigration Department of not sending letters relating to the BOR 2 risk claim when in fact his BOR 2 risk claim was dealt with at the same time as the other applicable grounds and rejected at the same time as the others on 12 December 2016; it was not dealt with separately.

17.The last ground criticises the Immigration Department for not sending a representative to the appeal.  The Director would have submitted submissions to the TCAB as well as the applicant and asked to be excused.  There is no procedural impropriety or unfairness to the applicant.

18.The last ground also criticises the adjudicator for doubting his credibility and his assessment of his credibility.  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.

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.  The same applies to the decision of the Director.

20.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 6^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