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

HCAL501/2017

[2018] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 501 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 oral submissions by the Applicant 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 claims to have entered Hong Kong illegally on 1 November 2012.  He was arrested on 24 April 2013 for having remained in Hong Kong after entering unlawfully and for using another person’s identity card.  After his arrest he then lodged a non-refoulement protection claim.  This was rejected by the Director of Immigration (“Director”) on 16 May 2016 and 11 April 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 28 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down for 2 January 2018; the applicant appeared in person.

2.  The basis of the applicant’s claim was that if he returns to Pakistan he will be harmed or killed by the Taliban.  Both the Director and the adjudicator of the TCAB set out his evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant was born in 1985 in the Punjab, had four years of primary education, is married with two children and made money by buying milk from farmers to sell to businesses and homes in the city.  In mid-2012 he was kidnapped by the Taliban, taken to a locked room where they demanded he join them, they would train him and he would become a terrorist and plant bombs for the Taliban.  When he refused he was beaten up.  The applicant managed to escape the next day by breaking a window.  He reached a road, borrowed a phone from a stranger and phoned a friend who was a police officer.   He had a few stitches to a head wound at a clinic. His police friend told him that the police would not be able to help because they were afraid of the Taliban.

4.  After he went home he felt that the Taliban were following him and asking other villagers about him so he decided to leave his village a few weeks later.  He took his family to his parents-in-law’s home.  The applicant continued to be mentally tortured due to fear that the Taliban would locate him there or anywhere and his life was in danger so his friend advised him to flee to Hong Kong.  The applicant departed Pakistan for Mainland China by bus and then after he crossed the border he took a train to Shenzhen.  He then illegally entered Hong Kong by bus on 1 November 2012.  He did not lodge a claim before his arrest because he did not know how to.  His family have told him that the Taliban have been to his house in Pakistan looking for him since he left the country.

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 adjudicator conducted an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles applicable to the four grounds.  She set out the evidence of the applicant and her assessment of his credibility.  She found his account of being kidnapped by unnamed terrorists implausible.  She gave full reasons for her conclusion and set out his material inconsistencies in her decision.  She found he was not a genuine claimant, in addition, there were also other inconsistencies in his account which undermined his credibility further, leading her to conclude he had not been kidnapped or harmed by a terrorist group and if he returned to Pakistan, he would not be harmed by terrorists.

7.  As a result of her findings, the adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  She confirmed the decision of the Director.

Leave to apply for judicial review

8.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  She analysed the material, claim and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

9.  The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  There is only one ground in his affirmation directed at the Director; he has failed to give sufficient reason for rejecting the applicant’s BOR 2 claim. I will refer to this ground later but it has no merit.

10.  I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  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 rehearing.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB.  Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

11.  The supporting affirmation lists the following as grounds for seeking leave:

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

(2) the lack of language assistance given to him/inability to read Immigration Department letter/procedural unfairness;

(3) insufficient reason given for rejection of BOR 2 risk by the Director; and

(4) procedural irregularity/no immigration department representative at the appeal.

12.  The first 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”.

13.  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.

14.  The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his “Answer 35” of his non-refoulement claim form despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. That form was completed with the assistance of a legal representative and an interpreter.  During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly.  If there had, the applicant would have been able to particularise it.  There is no merit in this ground or complaint.

15.  The applicant’s third ground although directed at the Director I will still deal with it.  He suggests no reasons were given for rejecting the BOR 2 risk claim.  The notice clearly refers to the Director’s findings in his previous decision of 16 May 2016 and applies it to Article 2.  He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision.  In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk.  Even if this was an application applicable to the Director, this ground would have no merit.

16.  The last ground criticises the Director’s Department for not sending a representative to the appeal hearing.  The Director would have submitted submissions to the TCAB as well as the applicant and asked to be excused.  There is no procedural impropriety or unfairness to the applicant.

17.  In that last ground the applicant does submit the Director rejected his BOR 2 claim without an interview and he assumed the applicant received the previous letter inviting him to submit information and was able to read, understand and interpret it.  However, when this letter was referred to during the hearing, the applicant denied he did receive this letter because he had a problem with the postbox and mail in the building he was living in at the time.  When it was pointed out to him that paragraph 10 of his affirmation confirms he did receive the letter the applicant replied that he did not know what the person who wrote his affirmation had said in it.  At that point, the applicant informed the court that he was not feeling well and wished the hearing to come to an end.

18.  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.

19.  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