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

HCAL 1667/2018

[2019] HKCFI 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1667 of 2018

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 be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani male who entered Hong Kong illegally on 29 January 2016 and was arrested by the police on the same day.  The applicant lodged a non-refoulement claim on 31 January 2016 which was rejected by the Director of Immigration (“director”) on 15 November 2016.  He then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was dismissed on 20 June 2018 following an oral hearing where the applicant elected to give evidence and answer questions.  On 17 August 2018, the applicant filed a notice of application for leave to apply for judicial review and included a statement. The applicant filed another written submission in 2019, which was not a sworn affirmation. He did not request an oral hearing.  I have considered his application on the papers.  

2.The basis of the applicant’s claim is that if he were to return to Pakistan, he would be harmed or killed by unknown men who threatened him because he had failed to assist them in killing his employer, a newly elected Member of the Provincial Assembly (“MPA”) of Punjab, Jahagir Khanzada, (“JK”).  JK’s father was the previous elected member of the assembly but had been assassinated.  The applicant suspects those men who demanded he assist them in planting a bomb near JK to kill him were responsible for JK’s father’s assassination.

3.Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.  The applicant worked for JK’s father as a chef and driver when he was a member of the provincial assembly supporting the Pakistan Muslim League (N) party.  On 16 August 2015 JK’s father was killed in a suicide bomb attack along with 18 other people.  The applicant continued to work in his household and for JK who became the new MPA of Punjab.

4.About a month after JK’s election, in early November 2015, the applicant was shopping in a bazaar when he was approached by 10 to 12 unknown men who said they wanted him to kill JK for money and he could name his price.  He was told they would give him a parcel bomb to place near JK and give him control of a remote control device to activate the bomb.  They threatened to kill him if he refused to help them and warned him against reporting this to the police.  The applicant was so scared he agreed in the bazaar to do this.

5.The applicant then decided he would not assist in the assassination.  He received a phone call from a man who said he had to meet that night at 10 PM about the assassination but the applicant failed to attend that meeting.  The next day he received an anonymous phone call threatening to kill him because he had failed to meet.  He immediately packed his bags and left for Lahore which was some six hours away by bus.  He did not tell his family nor JK that he was leaving; he did not disclose why he was fleeing home.  However, after he left, he continued to receive threatening phone calls and text messages.  The caller said they knew he was in Lahore.

6.The applicant immediately left Lahore for Quetta to hide from the callers.  He removed his sim card so that he could not be contacted or tracked.  After hiding out for about 25 days he had a stroke and was admitted into hospital for about 10 days.  After recovering he decided to arrange to leave Pakistan for Mainland China.  Even before he left, he did not contact his family.  He said he did not contact them nor did he report the planned assassination because he was warned not to contact the authorities.

7.He entered Hong Kong illegally on 29 January 2016, was arrested, lodged a non-refoulement protection claim and then released on his own reconnaissance on 31 January 2016.  Less than one month later, on 14 March 2016 he withdrew his non-refoulement application, requesting to be repatriated home.  Before that was arranged, on 19 May 2016, he applied in writing to reopen his application.  The Director considered his application and rejected it on all applicable grounds.

8.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”).

9.The adjudicator had conducted an oral appeal hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles for all four applicable grounds as well as the burden of proof and standard of proof.  She set out the applicant’s claim as well as her analysis of the applicant’s evidence, her assessment of credibility and her findings.  As to the Country of Origin (“COI”) information she did refer to and rely on, she set out the citations in detail.

10.The adjudicator did not find the applicant a genuine claimant.  She gave full reasons for her finding he was not credible. She did not believe his evidence and claim.  She concluded that even if he were telling the truth, the applicant had failed to establish he would face a real risk of torture, or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2, a real risk of persecution and a real risk of torture as defined in section 37U of the Immigration Ordinance if he were to be refouled to Pakistan.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed the material, claim and evidence carefully.  The applicant has filed an affirmation that lists 14 grounds and attached a statement.  He had not requested an oral hearing.  The affirmation lists grounds but no particulars and some of the grounds are repeated; grounds 10 to 13 are duplicates of grounds 1 to 4 respectively.  The statement is convoluted and refers to authorities, rambling rhetoric and poses questions.

12.The applicant’s grounds include complaints against the adjudicator for failing to consider the extended state acquiescence, failure to fully consider COI, procedural impropriety/unfairness, irrationality, a failure to call for medical reports, applied the incorrect standard of proof and a failure to give reasons for rejecting the applicant’s credibility.  There are no particulars to support any of these grounds and a reading of the adjudicator’s decision shows that the complaints against the adjudicator and the procedure undertaken are not made out in any event.  I find no substance in the bare grounds of this application.

13.The statement refers to several authorities but does not indicate the relevance nor particularise any grounds directly relating to the applicant’s claim or the adjudicator’s decision.  There is on page 31 of that statement other bare grounds without any particulars to support them which would appear to be related to somebody else’s claim.  There is a reference to a threat to and hardship faced by Shia Muslims, a reference to assaults and improper rejection of hearsay evidence; facts and issues unrelated to this applicant and his claim.  All in all, it is a very confusing statement which as far as I can see does not contain any substantive ground against the adjudicator.

14.I cannot 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.

15.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 the 17^th day of June 2019

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