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

HCAL543/2017

[2018] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 543 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 from mainland China on 16 May 2014 only to be arrested by the police on 21 May 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 6 January 2014 and 27 March 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 4 August 2017.  He then filed a notice of application for leave to apply for judicial review on 24 August 2017.  He requested an oral hearing and appeared in person on 17 January 2018.

2.  The basis of his claim is that if he were to return to Pakistan he would be harmed or killed by the members of the Azad Kashmir People’s Party (“AKPP”) because he was a supporter of a rival party, Pakistan Muslim League Nawaz (“PMLN”) and had refused to switch allegiance.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need summarise it here.

3.  The applicant was born in 1981, had six years of education and is married with four children.  The applicant comes from a village where there is equal support for the two political parties mentioned above.  In about 2011 the applicant became involved with and a supporter of the PMLN and assisted with electioneering and organising rallies.  In interviews with the Immigration Department the applicant said he had been paid to rally voters for the party.  His problems arose when he was approached by a Chowdry Yasin (“Chowdry”) who was a leader of the AKPP and told to cease supporting the PMLN and join the AKPP instead.  Chowdry threatened to kill the applicant if he did not join his party.

4.  One day in December 2013 the applicant was attacked by six or seven people who he recognised to be from the AKPP.  Some were holding guns whilst others brandished sticks.  The applicant escaped from the group after a few kicks and immediately took a bus to Islamabad some four hours away.  He did not report this attack to the police or his own political party.  He assumed it would be futile as the AKPP was the ruling party.  His family warned him not to return home because of the danger to his life.  Some men had come looking for him.  The applicant stayed in a hotel for about four months until he arranged to leave Pakistan to save his life.  His family paid 450,000 Pakistani rupees to arrange for him to fly to China.  He left Pakistan on 12 May 2014 for China and then entered Hong Kong by boat four days later.

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 treated the appeal as a rehearing and conducted an oral hearing.  He set out the law correctly and the key legal principles applicable to the four grounds.  He set out the applicant’s case and his analysis of his evidence.  He considered the applicant’s credibility as well as the level of risk of his feared ill-treatment.  The applicant confirmed that the adjudicator held two hearings; inviting the applicant back for a second hearing because the Director had rejected the applicant’s BOR 2 risk claim after the first appeal hearing. The adjudicator very fairly invited him back to appeal the BOR 2 decision.  The applicant had elected not to give evidence in the first hearing and elected to answer questions in the second hearing.

7.  The adjudicator did not find the applicant a credible and reliable witness.  He highlighted the applicant’s discrepancies and inconsistencies in his evidence including discrepancies surrounding the material facts and circumstances of the one attack he sustained.  He took into account that the applicant says he was persecuted and targeted because of his political affiliation with the PMLN yet in answer to questions he put himself forward as a supporter and then an actual member but later regressed and said he was a supporter only.  He could give no proper details about the party, the election date and purpose of that election he referred to in his evidence.  His answers were vague and inconsistent.  The adjudicator set out in his decision why he found the applicant was not a genuine claimant.

8.  The adjudicator found that even if the applicant’s evidence was truthful, the future risk of harm to him was very low.  He had failed to establish the harm and injuries he suffered could be defined as torture; he found the applicant had suffered no harm that warranted non-refoulement protection under any applicable ground.  He found the applicant, if he was telling the truth, would be 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.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

9.  The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  However, there are no grounds against the Director in his affirmation.

10.  In any event, 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.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant.  The supporting affirmation lists the following as grounds for seeking leave:

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

(2)  lack of language assistance/procedural unfairness; and

(3)  lack of a fair hearing.

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.  There is no merit in this ground.

14.  In the applicant’s second ground, he complains the duty lawyer service is saving costs and refused to translate his “NCF” despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate which is why he asked for a translation.  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 been issues, the applicant would have been able to particularise details here in his affirmation.  Moreover, the applicant was able to make this application and draft this affirmation in English.  During the oral hearing the applicant rather oddly said he could not recall if he did ask the duty lawyer scheme for a translation copy and then said he did not ask for it himself.  He then said he thought they had provided him with a copy.  I find no merit in this ground.

15.  The applicant’s last ground is a complaint that he did not receive any correspondence from the Director about his BOR 2 risk claim.  He was not given an opportunity to be heard or submit further information.  However, there is no complaint of this nature to the adjudicator.  The adjudicator invited him back for a second appeal hearing after the Director’s determination of the BOR 2 risk claim.  The applicant had ample opportunity to be heard or submit further information if he had previously missed that opportunity.

16.  In that last ground is a criticism that the applicant was not informed the Director’s representative was excused from the oral appeal.  Again, there is no complaint of this nature to the adjudicator at the appeal hearing.  He accuses the Director of failing to prepare for the appeal but the appeal bundle given to the applicant was prepared by the Director and would have contained the submissions of the Director.  There is no merit this ground.

17.  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.  The same applies to the decision of the Director.

18.  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.

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