HASSAN ALI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1677/2018

[2019] HKCFI 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1677 of 2018

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;

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 national who entered Hong Kong illegally on 29 April 2016 and surrendered on 4 May 2016.  He lodged a non-refoulement protection claim on 4 May 2016 which was rejected by the Director of Immigration (“the director”) on 25 September 2017.  The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 6 August 2018.  The applicant filed a notice of application for leave to apply for judicial review on 20 August 2018.  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 faces the risk of harm or death from members of the Pakistan Muslim League-Nawaz (N) (“PML(N)”).  Both the Director and the adjudicator set out the applicant’s evidence and claim in detail in their decisions, therefore, there is no need for me to repeat it.

3.  The applicant was a supporter of the Pakistan Peoples Party (“PPP”) and he used to be active in the party and help with rallies and recruitment.  Between 2000 and 2015, the applicant became embroiled in conflict members of the PML(N) who wanted him to defect or change his allegiance to their party.  When he refused, this began a series of verbal threats made to the applicant at various times.

4.  There was a rally in September 2015 attended by about 1000 PPP members and 5000 from the PML(N) party.  Verbal exchanges and abuse between the two party members escalated to a physical fight when suddenly an unknown person from PML(N) opened fire.  Everybody ran in different directions and the applicant realised that three PPP supporters died at the scene, including one who was shot whilst he was stood very close or beside the applicant.  On that same day, after he fled, he took a bus to Lahore and stayed with an uncle in hiding.  He was in constant fear of his life and 200,000 Rupes was paid to an agent who made travel arrangements for him to leave Pakistan on 21 April 2016.  

5.  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”).

6.  The applicant’s supporting affirmation contains no grounds.  He only writes that his life was still in danger at home.  The applicant was given a further opportunity in January 2019 when this court wrote to him asking, among several questions, if he had any further submissions to make but there was no response.

7.  The adjudicator treated the appeal as a rehearing and directed that an oral hearing be conducted.  She set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and what transpired during that hearing.  She set out the questions she asked and the areas of his evidence which she felt needed clarification, especially where there were discrepancies.

8.  The adjudicator set out in great detail the reasons why she rejected the applicant’s evidence.  She was not satisfied that he was telling the truth and found that he had fabricated his claims in order to apply for non-refoulement protection and extend his stay in Hong Kong.  She found significant inconsistencies and discrepancies in his claim and evidence.  His answers in response to those issues were not satisfactory.  She found he did not leave Pakistan because he was in fear of his life.  He was not credible.

9.  She concluded that the applicant had not made out a successful case on any of the four applicable grounds.  He was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan.  He failed to show that returning to Pakistan would expose him to a real risk of a violation of his right to life so as to constitute a breach of BOR 2.  The adjudicator confirmed the decision of the Director.

10.  Even though there are no grounds relied on by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

11.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and 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