Asghar Adnan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 972/2017

[2018] HKCFI 1573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 972 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 5 March 2015 and was arrested by the police on 25 March 2015.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 27 April 2015 on the basis that if he returned to Pakistan he would be harmed or killed by certain supporters of the political party Pakistan Muslim League-Q (“PML-Q”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Ladian, Bhurchh Bosha, Tehseel Kharian, Gujrat, Punjab, Pakistan where his parents and siblings still live.  After leaving school the applicant assisted his father in farming, and in 2005 he joined the PML-Q as a member attending meetings and voting in local elections.

3.However, after PML-Q lost in the general election, the applicant left to join another party Pakistan Muslim League-N (“PML-N”).  One day in early 2014 when he ran into a gangster AZ who was a supporter of PML-Q and who threatened him for quitting PML-Q to join PML-N.  The applicant became frightened and ran away, but thereafter he would receive threatening phone calls from AZ that he would be killed next time when he found him.  As a result the applicant went into hiding in his friend’s place in Lahore and later in Islamabad, and when the threatening phone calls from AZ persisted, he decided that he was no longer safe in Pakistan and therefore left on 14 July 2014 for China, and from there he sneaked into Hong Kong in March 2015 and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 29 January 2016 with legal representation from the Duty Lawyer Service.     

4.By a Notice of Decision dated 18 April 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

5.In his decision the Director found on the facts of the applicant’s own case that the threats from AZ were only verbal and made only once with which he had never followed up that there is no reasonable likelihood in the circumstances that the risk of harm from him as perceived by the applicant is real and foreseeable, that in the absence of any evidence of any involvement of the state or police in AZ’s threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Lahore or Islamabad where he had stayed without any incidents coming to Hong Kong. 

6.By a Notice of Further Decision dated 3 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 29 April 2016, and for which he attended an oral hearing on 31 July 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 18 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the applicant’s evidence suspicious and unreliable, that he suffered no injuries at all in the threatening incident which fell far short of the minimum level of severity for a torture claim, and that in any event state protection and reasonable internal relocation would be available to him for his safe return to Pakistan.   

9.On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director had failed to place proper weight to the presence of state acquiescence to the applicant’s claim;

(2)  that the Director had failed take into proper consideration of the fact that the applicant was tortured with full collusion of the police and the state enforcement agencies in the consideration of the applicant’s claim;

(3)  that the Director failed to take proper consideration of COI to assess the effectiveness of police protection in the consideration of the applicant’s claim;

(4)  that the Director failed to properly consider the corruption and incompetency of the government in Pakistan in the consideration of the applicant’s claim;

(5)  that the Director failed to apply high standard of fairness in the consideration of the applicant’s claim and that his decision was Wednesbury unreasonable in the public law sense; and

(6)  that the adjudicator failed to make sufficient inquiry into the applicant’s situation and failed to give sufficient chance for the applicant to provide relevant evidence in support of his claim. 

10.It should be noted that the applicant was late with his leave application by about 11 days as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  Here the applicant should have filed his application by 18 November 2017 and for which he has not given any explanation why he did not do so, but given that the length of the delay does not appear to me inordinate, I would extend time for his application.

11.I however find his grounds just broad and vague assertions full of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way did the adjudicator fail to take into account of relevant COI, or what is the relevancy of state acquiescence to his claim when it was not even his case that he was ever tortured by AZ or any supporters of PML-Q or by the police, or in what way was the Director’s decision Wednesbury unreasonable, or how the adjudicator failed to give him sufficient chance to provide evidence to prove his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

12.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

13.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 24^th day of August 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