REHMAN UBAID UR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL521/2017

[2018] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 521 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 claimed to have entered Hong Kong illegally by boat on 6 October 2013 only to be arrested two days later.  He lodged a non-refoulement protection claim which the Director of Immigration (“Director”) rejected on 11 September 2015 and 10 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 11 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 16 August 2017 and requested an oral hearing which was set down on 12 January 2018.

2.  The applicant appeared in person on 12 January 2018 but asked for an adjournment because he had applied for legal aid on 14 November 2017 and had yet to receive any decision.  I refused the adjournment because the applicant did not apply for legal aid in a timely manner.  He filed this notice of application on 16 August and then received a notice of hearing date sent on 8 November 2017.  Only after this was sent did he apply for legal aid six days later.

3.  When asked why he had applied for legal aid so late his explanations were that he was illiterate and did not know how to make the legal aid application.  When asked how he knew how to make the application on 14 November 2017 his explanation was that he had received the notice of hearing from the court.  His explanation was illogical and weak.  In my view the only reason for the timing of the late application for legal aid was to delay the hearing; the applicant was abusing the process.  I refused the adjournment to await the legal aid result.  I note that legal aid was refused on 26 January 2018, 14 days after the hearing proceeded.

Background

4.  The basis of the applicant’s claim was that he would be harmed or killed by his three paternal uncles and nine cousins if he returned to Pakistan because he had refused to transfer the ownership of land they wanted that he had inherited from his father.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

5.  The history of the land dispute stems from two pieces of land that the applicant says his father owned.  One piece was purchased by his father but put in the name of the applicant’s grandmother.  She lived on the land until she died.  The applicant believes his father was the sole beneficiary of it after she died because he had paid for it but his three uncles and cousins believed it should have been left to the applicant’s father and three uncles.  When his father died, the applicant inherited the land in dispute.

6.  There is a second piece of land in dispute that was inherited by the applicant’s grandmother which was left to the applicant’s father and three uncles.  When his father died, the applicant inherited his share of that second piece of land.  His father died in 2008 and between then and 2011 the uncles and cousins approached the applicant on several occasions threatening his life if he refused to transfer the land to them.

7.  Matters came to a head in 2011 when his uncles and cousins came to his house armed with pistols.  They requested he transfer the land to them and when he refused, they slapped punched and hit him with wooden sticks.  His friend later took him to a private clinic where he was treated for bruising and swelling all over his body.  One week later his uncles and cousins came again making demands that he transfer the land to them.  When he refused, he was assaulted again.  Thereafter, they came two to three times every month making the same demand and assaulting the applicant on each occasion.  The applicant lived in fear of his uncles and cousins and in 2013 he decided he had to leave Pakistan for his own safety.

8.  The applicant arrived in Hong Kong in October 2013 and now does not know what has happened to his land but he is of the view that internal relocation in Pakistan would not have been possible because his uncles were wealthy and had political connections as well as connections with the police.

9.  The Director and the adjudicator of the TCAB 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”).

10.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles applicable to the grounds.  He set out the applicant’s evidence and his analysis of it.  It would appear that he accepted the applicant’s evidence but found that even on his own facts the applicant was unable to make out a case for non-refoulement protection.

11.  As far as the persecution risk is concerned, the applicant’s disputes with his relatives is a private matter concerning family land inherited.  This dispute did not concern any Refugee Convention reason.  Despite the alleged political connections of his uncles, there is no suggestion that any State actors were involved in this dispute; his relatives were all acting in a personal capacity. The adjudicator found that the applicant was unable to establish that he had a well-founded fear he would be subjected to persecution for a Convention reason if refouled.  His persecution risk claim failed.

12.  There was no suggestion from the applicant that his rights under BOR to would be violated; his BOR 2 risk claim failed.  The adjudicator considered whether he was at risk of torture or CIDTP under BOR 3. Even on the applicant’s own evidence, although he was attacked he said on numerous occasions, he only required medical treatment on one occasion in 2011 when he was treated for bruises and swellings at a private clinic.  Despite the number of attackers/relatives against one man and his allegation that they carried wooden sticks and were armed with pistols, they clearly did not intend to cause serious harm or kill the applicant on any occasion.  If they had such an intention, then they had had plenty of opportunity to inflict serious harm or injury on the applicant but did not do so.

13.  The adjudicator considered the tests applicable to this ground and found on the applicant’s own facts, that the ill-treatment did not and would not attain a minimum level of severity and there were no substantial grounds for believing the applicant would face a genuine and substantial risk of being subjected to torture or CIDTP if refouled which is why his BOR 3 risk claim failed.

14.  The adjudicator did consider the definition of torture as set out in section 37U(1) of the Immigration Ordinance when he considered the applicant’s torture risk.  Even on the applicant’s own evidence, there is no suggestion that the incidents he described involved any State actor acting in an official capacity.  There is no evidence he is a target of the state.  The adjudicator found no evidence for believing he would be liable to torture if refouled; his torture risk claim failed.  The adjudicator did consider that the applicant could relocate internally without undue hardship if there was any risk; he gave his reasons why in his decision.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

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

16.  There are eight grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

17.  In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did not need to consider COI in depth because he found the applicant was not at risk.  It was also unnecessary to assess State acquiescence or whether Pakistan had a consistent pattern of mass violation of human rights.  These grounds are not arguable.

18.  The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. At the oral hearing the applicant tried to answer questions about this complaint but ultimately agreed he had no complaints about the conduct of the oral hearing.

19.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 10 February 2017 which was before the oral appeal hearing date of 4 May 2017.

20.  There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable.  This is misleading when the adjudicator made no finding as to the applicant’s credibility.

21.  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.

22.  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