Taza Gul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL633/2017

[2018] HKCFI 1444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 633 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 on 24 November 2013 only to be arrested by the police two days later.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 19 January 2016 and 8 June 2017.  He then lodged an appeal/petition with the Torture Claims Appeal Board which rejected his appeal on 6 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 18 September 2017 and requested an oral hearing.  The applicant appeared in person on 9 February 2018 and requested an adjournment because he had yet to hear the result of his legal aid application.

2.The applicant applied for legal aid on 4 December 2017 which is nearly three months after the date of this application.  He had no excuse for applying for legal aid so late except that he did not know about legal aid or how to apply for it.  The person who helped him file this application and the supporting affirmation did not tell him about legal aid.  In my view, not knowing about legal aid is not a good reason for applying so late for it and not at the same time as making this application.  I suspect the reason for it is to delay proceedings further therefore, I did not grant an adjournment and proceeded with the hearing.

3.The basis of the applicant’s claim is that if he were to return to Pakistan he would be harmed or even killed by the Taliban who threatened to kill him if he did not join them.  He refused to join them so had to flee Pakistan to save his own life.  Both the Director and the adjudicator of the TCAB have set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.In February 2013 the applicant started to work in a DVD shop in Peshawar which sold DVDs including those produced in America.  The Taliban are known to target these types of shops because they believed that American movies promote negative messages and were anti-Islamic.  In 2012 a DVD shop in Kohat, about 75 km away, was bombed by the Taliban.  The Taliban are also known to murder those who refused to join their group and cause.

5.In early 2013, the Taliban murdered three people from the applicant’s village which is about 40 km away from his shop because they refused to join the Taliban.  Everyone in their village knew of these three murders; the Taliban even put up posters threatening death if people did not join them.

6.In September 2013 the applicant’s shop where he worked was destroyed by bomb planted by the Taliban who also put up a notice claiming responsibility for the bomb and threatening to kill the applicant and his employer if they did not join the Taliban as warrior/suicide bombers.  Apparently, his boss told him that he had received calls from the Taliban the day before and the applicant himself received such a call the following day.  The applicant changed his mobile telephone number.  A week later the police contacted the applicant and told him that a second similar notice had been put up at the bomb site; it made similar threats.

7.After this, callers claiming to be from the Taliban telephoned his home number and told his parents that they would kill him if he did not join the Taliban.  The applicant’s father made a police report but they took no action.  The applicant said this was because they were afraid to take any action against the Taliban.  Other than these phone calls, there were no face-to-face confrontations with anybody claiming to be from the Taliban.

8.Some village elders advise the applicant to make his way to Hong Kong to seek protection.  He eventually left on 18 November 2013 for China before illegally entering Hong Kong.  His parents also moved away from his village.

9.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”).

10.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  The adjudicator considered the applicant’s credibility and the fact that his case was based solely on bare assertions with no supporting evidence such as newspaper reports of the shop bombing, photographs of the bombed premises or the notices left at the scene by the Taliban.

11.The adjudicator found the core of the applicant’s case inherently implausible and lacking in credibility. He did not believe the applicant was a genuine claimant.  He considered the fact that much of his evidence was based on what he was told by others and therefore hearsay.  Whilst hearsay is not, of itself, inadmissible, the weight which can be attached to such evidence is greatly reduced.  Hearsay cannot prove the truth of facts and speculation can rarely support any material element of the applicant’s case.

12.Even if the applicant’s evidence was true, the adjudicator considered the fact that he had never personally been confronted by any member of the Taliban, nor had his family after the DVD shop was bombed.  If the Taliban had a real interest in the applicant, they could easily have found him (having found his home phone number and mobile number) and killed him before he left Pakistan several months after the bombing.  The adjudicator found that the applicant had failed to establish, even to the low standard required, that there is a real chance that he would face serious harm or death or ill-treatment of any sort at the hands of the Taliban and if he is to return home.

13.The adjudicator applied those findings to the law and key legal principles and 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 purposes of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

14.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.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

15.There are eight grounds in this affirmation and none contain any particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

16.In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did not consider COI because of his finding the applicant was not a genuine claimant.  These grounds are not arguable.

17.The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

18.The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  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.There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 8 June 2017 and the date of the appeal hearing was 18 August 2017 with specific reference to that decision of the Director.

20.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.

21.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 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