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

HCAL398/2017

[2018] HKCFI 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 398 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 entered Hong Kong illegally only to be arrested on the same day.  The applicant filed a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 23 February 2016 and 13 April 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal when the applicant failed to attend on 25 May 2017.  The applicant filed an application for leave to apply for judicial review on 13 July 2017.  He requested an oral hearing which was set down on 5 December 2017 and appeared in person having had his application for legal aid refused.

2.  The basis of the applicant’s claim was that if he were to return to Pakistan his life was in danger from men who were affiliated with the Muttahida Qaumi Movement (“MQM”).  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant worked in his family owned restaurant in Hazro with his father and brother until they went to Karachi to open a new restaurant.  However, in Karachi extortionists from MQM made regular demands for money from his family which the applicant found out about in early 2013 when he went to work there too.  In mid-2013 the demands went up and the family were unable to pay.  One day in August in the restaurant when his father was unable to pay 200,000 Pakistani rupees, he and his brother was shot dead and the applicant was shot twice in the leg.  In fear of his life, the applicant sold the restaurant and fled his country.  The police did not investigate the murders because they were also afraid of MQM and could not protect him.

4.  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 the 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”).

5.  The adjudicator treated the appeal as a rehearing.  She arranged for an oral hearing but the applicant was absent.  A section 15 notice pursuant to Schedule 1A of Cap 115 was served on the applicant but there was no reply.  The adjudicator proceeded to consider the appeal on the papers.  She correctly set out the law and key legal principles applicable to the four grounds.  She set out the applicant’s claim and evidence.

6.  The applicant’s claim was that he lived in fear of extortionists who claimed to be associated with a political party MQM but even if they were, there was no evidence their actions were condoned or endorsed by the leaders of that party.  The crux of his claim was that he fled in fear of his life from a bunch of local bullies extorting money from his family business but now there was no family business in Karachi then that fear should no longer exist.  There was never any extortion in the family restaurant in Hazro and his mother still lives in Hazro.

7.  As far as the torture risk is concerned, she considered and set out the definition of torture under section 37U(1) of the Immigration Ordinance.  She found even on the applicant’s own evidence he did not make out a claim for torture as defined under the section.  He was not a target of the state, he was not targeted for the purposes under that section and there was no evidence those extortionists were state officials or people acting in an official capacity. His torture risk claim failed.

8.  In light of the adjudicator’s findings, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

9.  With regard to a BOR 3 risk, the adjudicator accepted he was shot in the leg but goes on to find that there was no evidence he faces a genuine and substantial risk of being subjected to torture or CIDTP if refouled to Pakistan; his BOR 3 risk claim failed.

10.  Lastly, the adjudicator found he was not at risk of persecution because of his race, religion, nationality, membership of a particular social group or because of his political opinion.  He did not have a well-founded fear of being persecuted for any of the Refugee Convention grounds.  Hisfear stemmed from a gang of thugs extorting from his family business that now no longer existed.  They had no interest in him personally. His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed material, claims 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.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

12.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning Country of Origin (“COI”) material and information.  Those include Grounds 1, 2 and 5.  Ground 3 criticises the adjudicator for failing to consider human rights violations and Ground 4 criticises her for failing to consider whether State protection exists in the Pakistan.  Firstly, particulars have not been given in relation to each of these grounds and complaints. Secondly, the adjudicator makes proper references to COI material having found there to be available state protection and viable internal relocation options.  

13.  Grounds 6, 7 and 8 also lack particulars.  There was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the absent applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously.

14.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the appeal hearing.  However, he did not turn up for the hearing so this is misleading in the affirmation.

15.  The same applies to the statement in the affirmation that the applicant answered all the questions in the appeal hearing honestly and “it aggravates him that his credibility was found questionable”.  He was not at the hearing to answer any questions.  The adjudicator did not make any finding as to credibility.  Again, the affirmation is misleading.

16.  There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator.  It is clear from the date of the Director’s Notice of Further Decision that he dealt with it before the date of the oral appeal hearing.  This is misleading.

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.

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

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