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

HCAL392/2017

[2018] HKCFI 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 392 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 claimed to have illegally entered Hong Kong by boat on 25 December 2013 only to be arrested three days later.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 24 March 2016 and 16 December 2016.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 9 June 2017.  He filed a notice of application for leave to apply for judicial review on 12 July 2017 requested an oral hearing which was set down for 3 November 2017.

2.  This court sent him a Notice of Hearing dated 30 August 2017 informing him of the hearing date.  I was satisfied that the notice was sent to the address supplied by the applicant in his application form and in his affirmation.  The applicant was absent on the hearing date.  The interpreter telephoned the applicant on behalf of the court and the applicant claimed that he had not received any notice of hearing.  The interpreter confirmed with the applicant that his address was the same address recorded in his application form.  As the applicant was absent, I reserved my decision and considered his application on the papers. He did not write asking for another hearing date.

3.  The basis of the applicant’s claim was that if he were to be refouled to Pakistan he would be harmed or even killed by two men, Imran, Liyaqat and their associates from Pakistan People’s Party (“PPP”) because he was a supporter from an opposition party Pakistan Muslim League (Nawaz) (“PMLN”) and the applicant had reported them to the police for murdering his father in mid-April 2013.  Both the Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.

4.  The applicant was born in Pakistan, received eight years of education and is single.  He is a supporter but not a member of PMLN.  Just prior to the general election of May 2013, the applicant and his father were organising and setting up a rally for a member of the National Assembly of the PMLN.  Suddenly a large group of PPP supporters arrived at the scene and stage to disrupt their welcoming rally.  Some of them started shooting rifles; the applicant’s father was shot dead at the scene and four other PMLN helpers were injured by bullets.  The applicant recognised Imran who shot his father and Liyaqat who shot another helper; they were security guards of PPP politicians.

5.  The police arrived but the PPP supporters fled.  The applicant gave a statement and named the two men.  The police at Saddar police station issued a First Information Report (“FIR”) and the applicant named Imran as his father’s murderer.  He separately told the police that Liyaqat shot another man.  Despite having the two men’s names, they were not arrested by the police because they could not be located.  The applicant knew they lived locally and could be found locally.  The applicant believed it was because they had paid the police bribes.

6.  The applicant told an Immigration officer in an interview that he went to the office of the Superintendent of police in his district to lodge a complaint against the inaction of the police in the Saddar station but was told that those officers were still investigating.  The applicant believed it was because the PPP were influential and all the police were under their control.  He could not report it to any other station but his own district.  He did try and seek assistance from his own PMLN leader but they could not assist him.  In fact, they warned him to be careful of his own safety, so he went to hide at an uncle’s home some 50 km away for one month.

7.  In the May 2013 election, the PMLN were the victorious party but none of the party leaders offered the applicant assistance.  Immediately after this, Imran and Liyaqat and a few men went to the applicant’s home looking for him.  They told his mother that the applicant had to amend his police report and warned him not to give evidence in court.  They visited their home several times. His family told him not to come home as he was in danger.  In June, these men suddenly appeared at his uncle’s home but his uncle lied and said the applicant was not there.  Those PPP supporters reiterated their threats and said the applicant had to amend his police statement or they would kill him.

8.  The very next day, the applicant’s uncle sent him to his friend’s home some 200 km away where he stayed until July 2013. His uncle arranged for him to fly to China to seek protection elsewhere.  The applicant heard that the two men had filed a false murder case against him at the Saddar police station.  The applicant did not know if there was an arrest warrant issued but police had gone to his house to look for him. The applicant is sure they did this to prevent him from giving evidence in court against Imran and Liyaqat.  The applicant left Pakistan on 2 July 2013 but returned on 17 July 2013 when no one helped him enter Hong Kong.  He left Pakistan a second time on 25 September 2013 and this time entered Hong Kong on 25 December 2013 illegally by boat.

9.  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”).

10.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He then set out the applicant’s evidence to analyse it and assess his credibility.

11.  The adjudicator found doubts in the applicant’s evidence that were material and affected his credibility to such an extent that he concluded that the applicant was not a genuine claimant.  He set them out in his decision as well as the applicant’s explanations if any.  He did not believe the applicant is a genuine and active supporter of the PMLN.  The applicant initially said that his village life is quiet and uneventful with little tension or political conflict but then changed his evidence to suggest that political violence was common and conflicts between the parties usually ended in one to two deaths; he had heard of and personally witnessed the shooting incidents.  He had reported such incidents to the police two to three times prior to his own father’s shooting.

12.  The description of his own father’s death is conflicting with inconsistencies that lead the adjudicator to doubt he actually witnessed it.  The description of the entire incident when the group arrived in trucks with no licence number plates all wearing coloured masks except for Imran and Liyaqat who wore black masks and start shooting sounded odd.  In one account the applicant ran away but yet could describe in detail how his father was shot and by whom and what the other shooter was doing.  In another account, he ran away with others and he only returned to the scene when the police arrived.

13.  The adjudicator found it very odd how his statement was worded in the FIR because it contained very technical descriptions of the guns and bullets held by the two men as well as their full names and addresses which he insists were his own words and not a statement composed with the help of the police.  There are different descriptions of whether it was a gun or whether it was a rifle that Imran used to shoot dead the applicant’s father.  The adjudicator was careful to point out that some discrepancies and inconsistencies were not material and serious in themselves but when they were all considered together he was sure that the applicant was not a credible witness.

14.  He then considered the four applicable grounds and seems to suggest that as far as all grounds are concerned except for the persecution ground the applicant’s case might be capable of establishing a claim under those grounds if he had not found the applicant a disingenuous claimant.  He gives no reasons for that brief and puzzling, all-encompassing statement or explains why for each ground the applicant’s claim might be capable of invoking protection, even BOR 2.

15.  As he did not find the applicant a genuine claimant, the adjudicator concluded that he had not established he was at risk of torture or CIDTP or had a BOR 2 risk or a BOR 3 risk or a persecution risk if refouled to Pakistan.  He confirmed the decision of the Director.

Leave to apply for judicial review

16.  The applicant seeks to judicial review the decisions on three grounds:

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

(2) lack of language assistance/unfairness and potential injustice; and

(3) procedural irregularity/a failure to give reasons.

17.  The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator of the TCAB.  In my view, this is not the right course of action to take.  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 a rehearing.  There is no room for a judicial review of the Director’s decision.  I have considered his grounds of his application against the decision of the adjudicator of the TCAB only.

18.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  The adjudicator’s analysis of the applicant’s evidence was thorough and his finding he was not a credible witness entirely substantiated.  The applicant’s complaints against him and the procedure undertaken are not made out.

19.  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”.

20.  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.

21.  The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis. This ground is not reasonably arguable.

22.  The applicant’s second ground has two parts, the first part is a complaint that the duty lawyer service would not provide him with a translation of his non-refoulement claim form.  He requested a translation to ensure the interpreter translated it properly.  If there had been any issue with the translation and his claim was not recorded properly or accurately, it would have come to light long before the appeal stage.  There is no evidence of this and there is no merit in this ground.

23.  The second part of ground 2 is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a further decision to be issued was in English, this normally relates to a BOR 2 risk claim separately considered by the Director.  The complaint is that the letter was too technical for him.  He provides no further particulars.  He only says that the fact he could not reply on time led the Immigration Department to decide against him.  There is no record of any complaint to the adjudicator in the decision.  He submits the government should provide an interpreter to the applicant as and when required, I quote from para 8 of the affirmation “so as to avoid jeopardising my rights”.  There is no merit in this ground either.

24.  The applicant’s third ground relates to the decision of the Director only, a failure to give reasons for his rejection of the BOR 2 risk claim, and as I have said above cannot be subject to judicial review.  This decision of the Director was subject to an appeal to the TCAB and decided upon by the TCAB.

25.  I do not find any ground that shows there was an error of law in the decision nor do I see any 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.

26.  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.

Dated 5^th day of March 2018.

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