Mehmood Adil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL703/2017

[2018] HKCFI 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 703 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 30 May 2012 only to be arrested on same day.  He made a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and that torture claim was rejected the Director of Immigration (“the Director”) on 13 August 2012.  Then the Unified Screening Mechanism was implemented and his claim for non-refoulement protection was assessed by the Director on applicable grounds other than the risk of torture, namely, his BOR 3 risk and his persecution risk.  The Director rejected these two claims on 8 September 2015.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) against that decision.

2.His appeal hearing was to be heard on 22 August 2016 but the applicant did not turn up; a notice was sent to him requiring him to submit a written explanation for his failure to attend the hearing but no response was received.  What it should mean is that his appeal/petition was dismissed.  Perhaps as the adjudicator of the TCAB knew the applicant’s BOR 2 risk claim was pending, he did not proactively dismiss the applicant’s appeal/petition.

3.By a notice of further decision dated 19 June 2017, the Director made a further decision that the applicant had failed to establish a personal and real risk under the provisions of BOR 2; his BOR 2 risk claim failed.  The applicant was given an appeal hearing date on 11 August 2017 and he did appear this time and in person.  The TCAB dismissed this appeal on 22 September 2017.  The applicant filed a notice of application of leave to apply for judicial review on 3 October 2017 and requested an oral hearing; he appeared in person on 28 February 2018 having had his application for legal aid refused.

4.The basis of his claim was that if he were to return to Pakistan he would be harmed or killed by his girlfriend’s father who disapproved of their relationship.  Both the Director and the adjudicator set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

5.The applicant was born in 1992 and received 10 years of education.  In 2009 he met a girl called Misbah and had a secret relationship for three years until her father found out, took away her mobile phone and forbad her to communicate with the applicant.  The applicant then received several phone calls from her father who threatened to kill him, he then told the applicant to forget about his daughter and leave the country.  The applicant said her father was politically connected to the police as well as a member of the Pakistan People’s Party.  Not long after those phone calls, the applicant was ambushed in his own home one morning by five or six men armed with guns who beat him for a few minutes until he was bruised all over and his face was bleeding.  They told him they were from the Pakistan People’s Party and searched his house, taking away his girlfriend’s photograph. They told him to forget her and leave Pakistan or they would kill him and his parents before they left.

6.The applicant sought medical treatment but was not admitted into hospital before making a police report.  He does not know if the police investigated the attack or not.  However, not long after this attack the applicant was arrested and detained in the police station for about two weeks for no reason but suspected it was under the instructions of his girlfriend’s father as he had no other enemies.  Moreover, the police kept telling him to forget her and when he was eventually released on bail it was on condition he left Pakistan. The applicant believed he was allowed out on bail so that her father could kill him.  When the applicant’s relatives bailed him out, he did not make any complaints to any higher authorities about his unlawful detention.

7.After his release from the police station he went home for a week and then went to Attock city which is an hour away to stay with a cousin for about two weeks to stay away from the Pakistan People’s Party.  His parents told him that they did come to his house looking for him.  After that, he decided to leave Pakistan for his own safety.  A friend arranged a Visa for China and he left in May 2012.

8.The adjudicator, as did the Director, analysed the applicant’s claim under the following 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”).

9.As I said above, the adjudicator conducted two oral hearings and the applicant was absent for the first and present for the second.  The adjudicator correctly set out the law and key legal principles applicable to all three grounds.  He set out the applicant’s claim and evidence.  He set out relevant, up-to-date and objective Country of Origin information (“COI”) to show available State protection in Pakistan if there was any risk to the applicant if refouled.  COI indicated that internal relocation was also a viable option without undue hardship.

10.The adjudicator also set out in detail the material inconsistencies, discrepancies and omissions he found in the applicant’s evidence when he compared his versions of events in his torture claims form, his questionnaire dated 11 July 2012, the transcript of his interview dated 31 July 2012, his supplementary claim form dated 22 June 2015 and the transcript of his interview dated 27 July 2015.  The adjudicator concluded the inconsistencies were so serious and inexplicable that the applicant was not credible and his accounts of the incidents could not be truthful.  He did not find him a genuine claimant and dismissed his claim.

11.It appears that the adjudicator however, did not put any of the above inconsistencies and discrepancies to the applicant and give him any opportunity to explain or clarify them before finding the applicant an unreliable claimant.  This is what he should have done during the oral hearing.  To be fair to this adjudicator, this applicant was absent at the first appeal hearing without any reasonable excuse or explanation but it is not made clear in the decision if this is the reason why the adjudicator did not put these matters to the applicant for clarification.

12.In any event, it is a moot point because the adjudicator goes on to also assess the applicant’s case on the basis that he believes the applicant is telling the truth and even on his own facts, finds he is unsuccessful in his claim.  The applicant only encountered one incident of assault from a group of five to six unknown men claiming to be from the Pakistan People’s Party who were all brandishing guns but only bruised the applicant during the assault.  He did seek medical attention but was not admitted into hospital.  If his enemies intended to harm or kill him, they had the weapons to do it but chose otherwise.  His injuries did not reach a minimum level of severity. Other than that one incident, he received one or two phone calls from his girlfriend’s father in 2011 and none since.  His girlfriend has called him once by borrowing a cousin’s phone and not again which means she has no interest in pursuing the relationship any further.

13.The applicant told the adjudicator that he knows she is marrying a man in 2018 and he admitted that means he will no longer be in any danger if he returns to his home village.  He admitted he wanted to go home and his family want him to return home.  The adjudicator was unconvinced he had evidence that the police were not protecting him after he made a police report.  He only speculated that his girlfriend’s father had influence over the police.  There is no evidence or indication of State involvement.

14.Therefore, the adjudicator found when he applied the applicant’s evidence to all three grounds he had not made out a case for non-refoulement protection; he found the applicant was unsuccessful in invoking the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.

Leave to apply for judicial review

15.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  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.

16.The supporting affirmation does not clearly and coherently set out the applicant’s grounds but it would appear that he proposes the following as grounds for seeking leave:

(1)  lack of communication, (he did not receive Immigration Department letters) the Director failed to give him an opportunity to claim BOR 2 risk;

(2)  his lack of legal representation before TCAB;

(3)  TCAB unfairly rejected the applicant’s credibility; and

(4)  the TCAB failed to properly consider Country of Origin information and ignored his evidence of pain and suffering.

17.The applicant’s first ground is a complaint against the Director, he submits he never received any correspondence from the Director inviting him to submit information if he wished to support a BOR 2 risk claim.  However, there is no complaint of this nature from the applicant recorded in the adjudicator’s decision.  In addition, he admitted in the oral hearing he requested that he received a lot of letters from the Immigration Department that were lying around his house but he could not read them.  I find no merit in this ground.

18.The second ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition.  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”.

19.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.

20.I have dealt the third ground above, even if the adjudicator should have put the applicant’s discrepancies to him for clarification before making a finding on his credibility, it is not fatal here.  The adjudicator also considered his case on the basis his evidence was true and found even on his own facts he had failed to invoke the protection of BOR 2 and BOR 3 and could not prove he was at risk of persecution.

21.The applicant’s last ground is a complaint against the adjudicator for failing to properly consider COI information as well as his serious injuries and ill-treatment.  There are no particulars from the applicant to support this ground and the adjudicator did refer to up-to-date and objective COI.  The applicant did not suffer serious injury or ill-treatment.  There is no merit in this ground.

22.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 serious failure to adhere to a high standard of fairness; even if there was, the applicants claim is not reasonably arguable which is the test here. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 18^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