ZUBAIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL385/2017

[2018] HKCFI 406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 385 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 foot by climbing over the fence at the border from Shenzhen only to be arrested by the police on the same day on 8 December 2013.  The applicant lodged a non-refoulement protection claim on 11 December.  His claim was rejected by the Director of Immigration (“the Director”) on 21 January 2016 and 8 May 2017.  He lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 2 June 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 11 July 2017 and he requested an oral hearing which was set down for 2 November 2017.   When the applicant filed this application he gave his address as care of the Castle Peak Bay Immigration Centre, Tuen Mun.  The applicant was at that time detained by the Immigration Department.  When we wrote to the applicant on 3 August 2017 to inform him of the hearing date, we were informed by the Immigration Department he was no longer detained.  Regrettably, the applicant did not update his latest address with the court registry and has not to date, being 8 February 2018.  As he was absent on the hearing date, I considered his application on the papers.

3.  The basis of the applicant’s claim was that if he were to return to Pakistan he would be harmed by the terrorists who had previously kidnapped him.  Both the Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.

4.  The applicant was born in the Punjab, is married with four children, has run his own business and also worked as a driver.  In September 2007 the applicant was kidnapped by terrorists and taken to the federally administered tribal areas between Pakistan and Afghanistan; the so-called uncontrolled territory, FATA.  He was kidnapped for 53 days and chained by his legs in a small room.  He was kidnapped for the purposes of demanding a ransom from his family.  He was tortured for the first few days but not much after that.  He was released after a ransom was paid by his cousin who was also his business partner in the LPG gas agency business.

5.  In January 2010 the police arrested two of the kidnappers, terrorists from FATA and the applicant identified them.  The applicant did give evidence in an anti-terrorism court. They were later convicted of kidnapping the applicant and another man and sentenced to life imprisonment.  Before the trial, the two kidnappers’ relatives did try and negotiate a settlement through the applicant’s cousin by offering to pay him money to withdraw his complaint against the two kidnappers.  If a complainant withdraws his complaint against an accused in Pakistan, the prosecution will cease to proceed with the case.  Even after the conviction, the kidnapper’s relatives continued to negotiate with the applicant’s cousin for a settlement.

6.  The police warned the applicant’s cousin and the applicant that FATA are dangerous and if they did not compromise with the relatives they may risk being harmed by the terrorists.  The applicant’s cousin persuaded the applicant to compromise and negotiate.  A settlement was reached. A settlement was also reached with the other victim as well.  Not long after, the other victim was killed.

7.  Some two years later the applicant started to receive threatening calls which he believed were made by those same terrorists from FATA linked with the two kidnappers and they were going to kidnap him again.  He believed that the kidnappers wanted to harm him even though they had avoided their criminal responsibilities because they had had to pay back the ransom money.  He lived in a state of panic and he was advised to leave his home area and flee to Hong Kong.

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 treated the appeal as a rehearing. He correctly set out the law and key legal principles for the four applicable grounds.  He set out the Country of Origin (“COI”) information that he considered relevant in his decision.  The applicant elected to answer questions.

10.  The adjudicator considered the applicant’s evidence and compared the oral evidence to his previous evidence.  The adjudicator found inconsistencies and matters he found implausible that he asked the applicant to clarify during the hearing.  The adjudicator was well aware that in assessing credibility, the existence of inconsistencies may not be fatal to a claim so long as the centrepiece of the story stands.  There may be reasons for not telling the truth or to exaggerate, because the applicant may have embroidered his story or changed it in an effort to bolster his claim.

11.  However, the adjudicator found the applicant’s evidence relating to his kidnapping in September 2007 questionable and the authenticity of his two documents produced to support his claim of being kidnapped dubious.  They purported to be the police report, an original FIR document, issued by the police station recording the applicant’s kidnapping as well as the settlement agreement between the kidnapper’s family and the victim, together with an affidavit of a surety to the settlement.

12.  The adjudicator found the evidence of the sporadic anonymous phone threats to harm him in mid-2012, five years after the alleged kidnapping and two years after the settlement where the two kidnappers were freed after repaying the ransom and naming the mastermind to be unreliable and implausible.  The applicant then only applied for a passport nine months after those phone calls apparently ceased.

13.  The adjudicator set out in detail the material facts that he found inconsistent, implausible and unreliable.  He set out why he thought the documents were not genuine. He set out the reasons why he thought the applicant’s explanation for fleeing his home country were bogus.  The adjudicator concluded the applicant was not a genuine claimant.  He placed no weight on the applicant’s evidence and was not persuaded, even to the low standard required, that the applicant had been kidnapped and ill-treated by terrorists or threatened by anyone over the phone before leaving Pakistan.  He found there was no real risk he would be harmed by FATA terrorists if refouled to Pakistan.

14.  The adjudicator had to consider the applicant’s claim against the four applicable grounds.  He considered the torture risk and the definition of torture as defined in section 37U(1) of the Immigration Ordinance.  The adjudicator found that even if the applicant had been kidnapped by terrorists, on his own facts he had not been tortured by them; in fact, other than some abrasion and bruises he was well treated, fed and watered.  Clearly they had no intention to harm him because they wanted to collect money from his family.  No acts committed by the terrorists amounted to severe pain and suffering.

15.  There was no evidence to show that there was any involvement of any public official or anyone acting in an official capacity.  If he was kidnapped by terrorists, then they are enemies of the State.  According to the applicant, two of his kidnappers were arrested and prosecuted.  The police did not deny him any assistance.  He was not a target of the State.

16.  The adjudicator considered COI reports and considered the risk and negative impact of terrorist activities in Pakistan.  He considered the corruption in the police force but found attempts were in place to combat it.  He found that there was reasonable State protection available to the applicant if he was at risk from terrorists.  He also found that internal relocation was a viable option without undue hardship for the applicant having been involved in a business as well as earning an income as a driver.  He found the applicant had failed to show that there were substantial grounds for believing he would be in danger of being subjected to torture as defined in the Ordinance if he were to be refouled to Pakistan; his torture risk claim failed.

17.  The adjudicator considered the applicant’s BOR 3 risk and found that he had failed to prove he had suffered ill-treatment that attained a minimum level of severity and that he faces a genuine and substantial risk of being subjected to torture or CIDTP if he is refouled to Pakistan; his BOR 3 risk claim failed.  The facts of his case clearly did not give rise to any risk of violation of his right to life under BOR 2; his BOR 2 risk claim failed.

18.  The applicant’s fear did not arise on account of a fear of persecution because of race, religion, nationality, membership of a particular social group or political opinion.  His claim of being kidnapped for a ransom and now living in fear that the kidnappers are coming back for him does not come within a convention reason.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

19.  The applicant has sought to judicial review the decisions of both the Director of Immigration and the adjudicator of the TCAB.  However, in my view, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or a rehearing.  There is now no room for a judicial review of the Director’s decision for any reason I can see.  I have considered the grounds of his application against the decision of the TCAB only.

20.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decision to be without fault.  The adjudicator analysed the material, claims and evidence carefully, logically and with caution.  The applicant’s complaints in the affirmation against him and the procedures undertaken are not made out.  I find no substance in the grounds of this application.

21.  In his affirmation, the applicant submits the adjudicator has failed to examine and give sufficient weight to the extended concept of State acquiescence.  The adjudicator did not find the applicant a genuine claimant because he did not find his evidence credible.  In addition, the applicant did not rely on the extended concept of state acquiescence.  The decision-makers did not need to consider this concept.  The applicant did make a police report and the police did arrest two of his kidnappers and prosecute them.  It was the applicant who negotiated a settlement with them after trial.  This is not a case where the State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  I find no substance in this ground.

22.  The applicant also submits that the adjudicator’s finding that the government has taken steps to improve the effectiveness of the police force is unreasonable and purely speculative.  He refers to a human rights watch publication from September 2016 that outlines human rights abuses carried out by the police.  The adjudicator does acknowledge that there is corruption that the government is trying to address.  What is more pertinent in this case is that the police have not been accused of acting corruptly to the detriment or prejudice of the applicant; in fact, quite the opposite.  There is no merit in this ground.

23.  I see no merit in the ground that accuses the adjudicator of failing to attain a high standard of fairness required, in particular as the applicant was not legally represented.  I also see no merit in the ground that accuses the adjudicator of failing to advise the applicant to obtain medical reports.  This was not raised as part of the applicant’s case nor was it obvious that medical reports would have assisted the applicant or the adjudicator.

24.  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.

25.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 5^th day of March 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