HUSSAIN RAFAQAT v. EVAN RUTH, ESQ

HCAL 878/2017

[2018] HKCFI 1455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 878 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:

1.  The applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 9 June 2011 and was arrested by the police on 11 June 2011.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 14 June 2011 on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute and for refusing to join his political party Pakistan Muslim League (N) (“PML(N)”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Kakrot, Nothia Qureshian, Sarai Alamgir Tehsil, Gujrat District, Punjab Province, Pakistan to a family of supporters of the Pakistan Peoples Party (“PPP”).  After leaving school he worked in his family farmland growing wheat for a living and also became a PPP supporter.

3.  His family farmland was passed from his grandfather to his father and his paternal uncle in equal share but his uncle who was a wealthy and influential man in the village and a member of PML(N) always wanted all the land for himself and for the applicant’s family to join quit PPP to join PML(N) which had led to frequent conflicts between him and the applicant’s family.

4.  One day on 15 February 2011 while the applicant and his brother were working in their farmland, his uncle with several men appeared with guns and wooden clubs and abducted his brother while the applicant managed to run away unharmed other than scratches and cuts to his limbs caused during his escape.  Afterwards his father reported the incident to the police and was issued a First Information Report (“FIR”).

5.  Fearing for his safety the applicant’s father advised him to leave town and so he first went to stay at his aunt’s place in Village Gora Kunjal in Azad Kashmir for several months until 6 June 2011 when he departed Pakistan for China, and from there he sneaked into Hong Kong and lodged his torture claim which was rejected by the Immigration Department on 12 December 2011 when he then went underground until his arrest by the police in May 2014 when he then lodged his non-refoulement claim on 1 June 2014, and for which he subsequently completed his Supplementary Claim Form (“SCF”) on 30 September 2015 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 17 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director found even on the applicant’s own case that the absence of any direct threats or harm inflicted on him by his uncle indicative of low risk of future harm to him upon his return to Pakistan, that in the absence of any evidence of any involvement of the state or police in his uncle’s threats and actions that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan that it would not be unduly harsh for the applicant as an able-bodied young man to move to other areas away from his home village such as Azad Kashmir where his family members including his brother who is said to have returned to the family in 2014 have since resided without any further incidents.

8.  By a Notice of Further Decision dated 18 September 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 30 June 2016, and for which he attended an oral hearing on 3 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board accepted a high prevalence of land disputes in Pakistan of the type alleged by the applicant and that his claim is plausible but found him not a witness of truth and that he has failed to discharge the very light burden upon him in relation to the factual claims he has made, that his testimony at the hearing was vague, incoherent and fundamentally inconsistent with what he had previously said on several occasions in relation to key and material claims, that when asked to account for these difficulties and when shown the major and significant discrepancies between his oral testimony at the hearing and his previous statements to the Immigration Department that he could provide no explanation, that the Board concluded that nothing the applicant said can be given any credence at all and that he was not describing events in which he himself had participated, and that having closely questioned him about the details and provenance of the documents submitted by him found that they either do not relate to him or that little weight can be placed upon them.

11.  On 13 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.  These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  Furthermore, given the fact that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed reasons set out in paragraphs 25 – 42 of its decision, any attempt to challenge the Board’s reliance of COI to assess the situations of state protection or violation of human rights in Pakistan seems to me future and pointless, as it is a well established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers.  With the adjudicator’s clear findings against the applicant on the core of his claim that he had been attacked due to the dispute over the farmland between his family and his uncle for which the Board was perfectly entitled to reject his claim, I do not find any basis or merits in these complaints of the applicant.

14.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing to the adjudicator.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

16.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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