Akhtar Jamil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL617/2017

[2018] HKCFI 1443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 617 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 10 July 2006 and was arrested by the police on 5 October 2006.  After his arrest he lodged a torture claim which he subsequently withdrew in October 2008 and was repatriated to Pakistan on 30 December 2008.  The applicant last arrived in Hong Kong on 13 July 2013 and was refused permission to land on the same day but he lodged a torture claim.  This claim was rejected by the Director of Immigration (“the Director”) on 19 September 2013.  The applicant did not lodge any petition/appeal against that decision to refuse his torture claim.  Under the Unified Screening Mechanism his claim for non-refoulement protection was assessed on applicable grounds other than the risk of torture; those being persecution and BOR 3 risk.  Those risk claims were rejected by the Director on 18 April 2016 and his BOR 2 risk claim was subsequently rejected by the Director on 15 February 2017.

2.The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which considered and rejected his BOR 2, BOR 3 and persecution risk claim on 30 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 13 September 2017 and requested an oral hearing; he appeared in person on 21 February 2018.

3.The basis of his claim was that if he were to return to Pakistan he would be harmed or killed by Shaukat because he had borrowed money from him and not repaid it.  He also feared he would be harmed or killed by two brothers, Sajjad and Hajji because of a previous grudge and dispute with them.  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 to summarise it here.

4.The applicant was married with six children and ran a fruit stall funded by his father between 1997 and 2006. Between 2009 and 2013 the applicant ran a garment business.  The two major political parties Pakistan, the Pakistan People’s Party (“PPP”) and the Muslim League Q (“ML”) have been long-standing rivals in the applicant’s home town.  The applicant was a supporter of the PPP.  The applicant’s problems arose just before the election for the post of the local administrator, the Nazim in November 2005.

5.Just before the election Sajjad, the incumbent Nazim who was a neighbour of the applicant asked the applicant at his fruit stall to vote for him.  However, because he was from the ML, the applicant later refused him and he responded that he would now oppose the applicant.  Notwithstanding his subsequent victory in the election, Sajjad was angry with the applicant because he had caused him to lose votes to the PPP.

6.In April 2006 the applicant went to Lahore to attend a friend’s wedding leaving his family behind.  When he returned he found that his wife and children were in distress, had been assaulted, his home ransacked and his wife indecently assaulted.  They had also destroyed all the fruit in his warehouse.  The culprits were Sajjad and his men.  When the applicant went to the police station to report all these matters, he was arrested and detained for four days.  He was assaulted daily and deprived of food and water; false accusations were levelled at him by Sajjad.

7.Eventually a former Nazim from the PPP bailed him out and had the charges dropped whereupon the applicant immediately left for Lahore in fear of his own safety.  He decided to leave Pakistan for Hong Kong.  He sold his family home and his wife and children went to live with his mother-in-law.  He left Hong Kong for Pakistan in July 2006 and lodged a torture claim.  He withdrew that torture claim in October 2008 when his wife became critically ill in Pakistan.  Soon after he returned his wife recovered.  In February 2009 the applicant resolved his dispute with Sajjad with the help of village elders.  He then set up a garment business in his home town in August 2009 by borrowing Rs.1.7 million from Shaukat who happened to be a good friend of Sajjad and a supporter of ML.

8.His new garment business was located next door to Sajjad’s brother, Hajji.  At first they were on good terms but when the applicant’s business did well he became jealous.  He became so jealous he asked the applicant to close his shop in early 2013.  When the applicant refused Hajji threatened him.  On 1 May 2013 the applicant discovered his shop had been burgled overnight and he suspected it was his neighbour.  He reported his suspicions to the police station but they refused to record down his suspicions because of his brother.

9.Not long after the burglary, Shaukat suddenly called in his loan early which the applicant suspected was at Sajjad’s request.  The applicant could not repay it and Shaukat threatened to kill him.  He made this threat over 15 times over the following two months and even assaulted him with a wooden stick on several occasions.  The applicant felt he had no choice but to leave Pakistan again to save his life and left again on 1 July 2013 for Hong Kong.  By September 2013 the Director had already rejected the applicant’s torture risk claim.  The applicant did not appeal that decision.

10.The adjudicator, as did the Director, further analysed the applicant’s claim under other applicable grounds;

(a)   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”);

(b)   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

(c)   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”).

11.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He very fairly conducted two hearings because the Director’s decision relating to the BOR 2 risk was determined after the first appeal hearing.  In his decision the adjudicator correctly set out the law and key legal principles applicable to the above three grounds.  He set out the applicant’s evidence and his analysis of it.  He considered the applicant’s credibility and the careful approach to be adopted in the analysis of credibility of asylum seekers.  The applicant adopted his evidence and elected to give evidence but after he had answered a few questions he changed his mind and elected to remain silent.

12.The adjudicator did not find the applicant a forthright witness; his answers to the few questions were cursory, vague and were offered grudgingly.  He was evasive and inconsistent in details to such an extent that the adjudicator described him as a “somewhat hostile witness who was reluctant to have the information he had presented to the Director subjected to the Board’s scrutiny and requests for clarification.”

13.It was a matter of concern to the adjudicator that the applicant told the Director that due to “privacy” concerns he was unwilling to consent to the UNHCR releasing to the Director details of the information he had included in his 2006 refugee application to the UNHCR.  This affected his credibility as did his refusal to answer further questions during the appeal hearing; it meant the adjudicator was unable to address concerns and questions he had.

14.What the adjudicator did find was that the applicant had resolved his dispute with Sajjad by February 2009 and there was no evidence of further animosity between them after that date.  There was no evidence Sajjad was involved in any way with any disputes between the applicant and Shaukat or Hajji.  Neither of these two men had ever physically harmed or threatened to harm the applicant’s family.  Hajji had never physically harmed or threatened to harm the applicant. Shaukat had never seriously harmed the applicant; no ill-treatment that reached a minimum level of severity.

15.When the adjudicator applied the law to the facts he accepted he found that it was reasonable to conclude that Sajjad no longer posed any risk to the applicant as a result of their previous dispute and any fear that he was involved in the applicant’s dispute with Hajji and Shaukat was purely speculative.  The sole cause of Hajji’s animosity was due to the applicant’s successful business but as he had ceased to operate his business next door this ended the reason behind his neighbour’s animosity.  There was no reason to believe there was any future risk even if it was genuine.

16.That leaves Shaukat and since his sole concern was the repayment of his money then to seriously harm or kill the applicant would be counterintuitive to his goal.  If he had had a genuine intent to harm or kill the applicant, he had had plenty of opportunity to do it before the applicant left Pakistan.  This indicates this was not his intention.  The adjudicator considered any risk further diminished by the existence of reasonable State protection, as well as by the availability of internal relocation alternatives.

17.The adjudicator also went on to consider relevant, up-to-date and objective Country of Origin (“COI”) information that he concluded showed reasonable State protection existed within Pakistan that would minimise risk if there was any to the applicant if he returned home.  He also found that extensive COI and on the facts he accepted it showed that even if the applicant was able to establish any of the applicable grounds for non-refoulement protection, internal relocation was a viable option without undue hardship in places such as Lahore or Islamabad.

18.As a result of his careful assessment, the adjudicator when he applied his findings to the law and key legal principles, he found the applicant was unsuccessful on his own facts in showing he was at risk of persecution nor was he able to invoke the protection of BOR 2 or BOR 3 for the purposes of a non-refoulement protection claim.  The adjudicator confirmed the decision 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 applicant’s submissions.  The adjudicator analysed the material, claim and evidence and then explained his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

20.The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  There is only one ground in his affirmation directed at the Director; he failed to give the applicant an opportunity to submit information to support his BOR 2 claim and failed to arrange an interview before that rejection.  I will refer to this ground later but it has 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 applicant has 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 applicant would have covered all mistakes he 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 his 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 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;

(3)     the Director failed to give him an opportunity to claim BOR 2 risk; and

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

23.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”.

24.It is clear that where the applicant’s fundamental human rights 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.

25.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.  There is no merit in this ground because the applicant confirmed in the oral hearing that he had in fact, not requested a translation from the duty lawyer service.

26.The applicant’s third ground although it is a complaint against the Director, I will still deal with it.  He suggests he never received any correspondence from the Director inviting him to submit information if he wished to support a BOR 2 risk claim.  He did not receive any correspondence informing him that his BOR 2 risk claim had been rejected.  He did not know about this rejection until he had received the determination of the appeal/petition by the TCAB. This is blatantly untrue because the adjudicator of the TCAB convened a second appeal hearing specifically to deal with the appeal of the BOR 2 risk claim, see paragraphs 53 and 54.  Even if this was an application applicable to the Director, this ground would have no merit.

27.The last ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing.  The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused.  This practice does not result in any unfairness to the applicant.  This ground has not been particularised nor has any merit.

28.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.

29.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave 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