AHMAD MUSHTAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL671/2017

[2018] HKCFI 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 671 of 2017

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 the Applicant being absent in open court;

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 3 September 2013 by boat from China only to be arrested one week later.  He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 18 December 2015 and 26 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 September 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 25 September 2017.

2.  The applicant requested an oral hearing which was set down for 5 February 2018 but he was absent.  A telephone call was made to the mobile phone number supplied by the applicant and when the court interpreter spoke to the applicant to tell him that his hearing was scheduled for that day, the applicant said that he could not hear the interpreter and hung up.  There were two further attempts to call the applicant again but he did not answer.  I was satisfied that a notice of hearing had been posted to the applicant’s address supplied by him therefore, I considered his application on the papers.

3.  The basis of his claim was that if he were to return to Pakistan he would be harmed or killed by Hanif and Amanat of the Wahabi religious sect because his son had delivered a speech criticising and highlighting the shortcomings of the Wahabis.  Both the Director and the adjudicator of the TCAB set out in their decisions the applicant’s evidence and case therefore, I only need summarise it here.

4.  The applicant was born in 1968, was married with four children and worked in a textile mill.  At the end of 2012, the applicant’s elder son, then aged 15, gave a speech in the local Shia mosque criticising the Wahabi religious sect.  As the speech was broadcast over loudspeakers, it was heard by the majority of the residents in the village who were Wahabis.  A group of Wahabis went to the mosque carrying sticks and demanded to see the applicant and his elder son.  The applicant was present and heard the warning that he and his eldest son should leave the village otherwise they would be killed.  He sent his elder son back to the religious Institute where he was studying in Lahore.

5.  The applicant then claims there was a plot by the local Wahabis, including Hannif and Amanat, to kill the applicant.  He then fled to Lahore and did not return to the textile mill where he had been working. He lived with a friend in Lahore from the end of 2012 for six months.  He was afraid that these men would be able to locate him even in Lahore so he arranged to leave Pakistan for his own safety.  He left on 17 July 2013 and flew to Mainland China.  After he left, his wife told him that the two men had occasionally visited their house and threatened to kill him and his elder son if they were seen again in the village.

6.  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”).

7.  The adjudicator treated the appeal/petition as a rehearing and arranged for an oral hearing.  He correctly set out the law and key legal principles applicable to the above grounds.  The adjudicator also considered Country of Origin (“COI”) information for the availability of State protection and internal relocation if he was at any risk. The adjudicator reiterated that it was for the applicant to show that he personally faces a real or genuine risk of suffering the harm he claims to fear if refouled to Pakistan.  He then set out the applicant’s evidence and case as well as the material discrepancies between the evidence he gave during the appeal hearing and that in his non-refoulement protection claim form.

8.  The adjudicator set out his analysis of the applicant’s credibility and highlighted the differing accounts given to him as to when a friend told him of the plot by local Wahabis to kill him and his elder son.  The adjudicator was satisfied that the applicant had embroidered his story for the purposes of this claim.  He found that the fact the applicant did not leave Pakistan earlier when he had a passport issued in 2011 and why he did not seek protection after arriving in Hong Kong but before his arrest affects his credibility.  Especially if he had been in genuine fear for his life.  The adjudicator asked him to explain his discrepancies but was not satisfied with his answers.

9.  The adjudicator was of the view that if there were hostilities between him, his elder son and local Wahabis then he could understand why he feared for his elder son safety and even his own if they returned to the village. What the adjudicator could not accept was that if he genuinely believed there was a plot to murder him, he would not have left his wife and three young children behind in that village where they were still living now.

10.  As a result of the careful assessment, the adjudicator applied his findings to the law and key legal principles and found that the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant.  The supporting affirmation lists the following as grounds for seeking leave:

(1)   lack of a fair hearing regarding his BOR 2 risk claim;

(2)   lack of legal representation before TCAB/miscarriage of justice;

(3)   lack of language assistance/procedural unfairness; and’

(4)   lack of a fair hearing.

12.  The applicant’s first ground is a complaint that he did not receive any correspondence from the Director about his BOR 2 risk claim.  He was not given an opportunity to be heard or submit further information.  However, there is no complaint of this nature to the adjudicator. The adjudicator invited him back for a second appeal hearing after the Director’s determination of the BOR 2 risk claim.  The applicant had ample opportunity to be heard or submit further information if he had previously missed that opportunity.

13.  The second 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”.

14.  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.  There is no merit in this ground.

15.  In the applicant’s third ground, he complains that he was not provided with the services of an interpreter “to better explain of my case in person during the process to avoid jeopardising my rights”.  The applicant would have had the assistance of an interpreter during the oral hearing.  If he had felt his rights were jeopardised, he would have made a complaint to the adjudicator yet none was made.  I find no merit in this ground.

16.  In that last ground is a criticism that the adjudicator took into account COI that was out-of-date, not relevant and hearsay.  There are no particulars to support this ground.  In addition, the applicant says the adjudicator took one day to make a decision which meant he did not treat his appeal seriously.  This is misleading when the date of hearing was 29 August 2017 and the adjudicator’s determination was dated 7 September 2017.  There is no merit in this ground.

17.  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.

18.  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.

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