HASSAN GHULAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL371/2017

[2018] HKCFI 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 371 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 claims he illegally entered Hong Kong on 5 February 2015 and surrendered to the Immigration Department eight days later.  He lodged his non-refoulement protection claim which was then rejected by the Director of Immigration (“the Director”) on 8 August 2016 and 13 March 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed it on 11 May 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 7 July 2017.  He requested an oral hearing which was set down on 28 November 2017.  A notice of hearing dated 14 September 2017 was posted to the applicant’s address as supplied by the applicant in his application form but it was returned by the post office and marked as an “incomplete address”.  The applicant left no mobile telephone number with his application form.  There is no other method to contact the applicant so I have decided to proceed with the application and consider it on the papers.

3.  The basis of the applicant’s claim was that if he were to return to Pakistan his life was in danger due to a family land dispute.  His relatives had killed his father already and would kill him because they wanted to occupy their land.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full and in detail in their decisions therefore I only need summarise it here.

4.  The applicant’s troubles started in July 1997 over a land dispute and irrigation rights within the applicant’s family.  His father argued with six relatives for irrigation rights for his land and was shot dead by a relative after an argument whilst other relatives were injured.  The other side wanted to deny the applicant’s father water so his land would become useless and they would be able to buy cheaply.  Four of the six were charged with murder, two confessed but the other two were released, probably because they paid bribes to the police.

5.  The case dragged on pending a compensation settlement with the victim’s family but when it became apparent that the Pakistani government would tighten punishment for murderers, in 2004 a settlement was reached.  It was decided that the applicant would marry one of the four relative’s daughters and the two sides would forgive each other; the two that confessed would be released. However, about 10 days after their release it became apparent that the marriage was a sham to arrange for their release.

6.  The bride went home to visit her newly released brothers and never went back to the applicant.  In fact, the applicant was told that not only was his new bride not coming back, one of the released murderers would be coming to kill him.  The applicant left home immediately to live with his cousin.  About a year later, he and his cousin were riding together on a motorbike when they were shot at and fell to the ground, his cousin was killed immediately.  The applicant heard more gunshot and ran away.  He is sure he was the target but his cousin was hit by mistake.

7.  He relocated again, this time some 30 minutes away to live with the son of his father’s cousin and he lived there for two to three years until his family told him to relocate to Lahore in case it was no longer safe there.  The applicant lived in Lahore for six to seven years living with his father’s cousin and working in a factory.  Sometimes his family would visit him in Lahore.  On his last visit, his mother told him that his life was still in danger from his relatives who still wanted to kill him if they could find him.  His mother advised him to leave the country.  The factory owner introduced him to a person who suggested he escape to Mainland China and helped him arrange the trip.  He eventually made his way to Hong Kong for protection.

8.  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”).

9.  The adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing. He correctly set out the applicable law and key legal principles for the above grounds and risks in his decision.  He then set out the applicant’s case, claims in his non-refoulement claim form, evidence in his screening interviews, supporting documents and oral evidence given during the appeal.  The adjudicator asked him to clarify inconsistencies he found in his evidence and claims.  He also discussed matters that concerned him which he found affected the applicant’s credibility.

10.  Those concerns centred on why he did not seek help and obtain State protection as well as the viable option of internal relocation.  He had moved away from his family for a total of nine years before leaving Pakistan and nothing had ever happened to him during that time which would indicate internal relocation was an option.  The adjudicator had many questions that centred on his reasons for his departure as well as the timing of it.

11.  The adjudicator was well aware of the care he had to take when assessing credibility; he considered the relevant authorities and principles.  After careful consideration of the applicant’s evidence, he did not find the applicant a genuine and credible claimant.  He set out his reasons why he came to that conclusion in succinct detail in his decision.  There were material discrepancies that he could not explain coherently and much of his “revenge narrative” made little sense to the adjudicator.  He found some of his assertions not only mere speculation, with no evidence to back them up but also internally contradictory and therefore the adjudicator found them hard to believe.

12.  Rarely does an adjudicator’s reasons for rejecting an applicant’s evidence read so convincingly as in this decision but I am satisfied that the adjudicator adhered to a high standard of fairness by setting out full reasons for finding the applicant an unreliable claimant.  There can be no complaint that no reasons have been given and there has been a failure to properly consider the applicant’s claim.

13.  The adjudicator does say that even if he is wrong or even if he had found the applicant’s claim to be credible, he would have found the applicant could safely avoid the threat of harm by relocating internally, for example to Lahore (where he had lived for six to seven years already without mishap).

14.  The adjudicator went on to find that as he had found the applicant an unreliable and disingenuous claimant, he was not satisfied that there are substantial grounds for believing he would be in danger of being subjected to torture if he returned to Pakistan.  Similarly, he did not face a genuine and substantial risk of being subjected to torture or CIDTP in breach of BOR 3 nor did he face a real risk of being arbitrarily deprived of his life or his rights under BOR 2.  Lastly, the applicant did not have a well-founded fear of being persecuted in Pakistan for a Refugee Convention ground or for any other reason.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.  The applicant seeks to apply for leave to judicial review the TCAB decision as well as the Director’s decision relating to the BOR 2 risk dated 13 March 2017.  His only ground relating to this latter decision was that he did not receive this decision in the post nor did he receive a request in the post prior to that decision inviting him to submit further information if he had any, in particular that related to a BOR 2 risk.

16.  There is no mention in the TCAB decision that the applicant complained of this to the adjudicator.  It was not a ground of appeal to the TCAB.  He does suggest in his affirmation that the adjudicator did ask him for further information relating to his BOR 2 risk but the interpreter misinterpreted this part of the conversation but gives no particulars nor indication how he knows this mistake was made. As a result of the misinterpretation, it appears he missed out on supplying further information. Again, he gives no further particulars. There is no merit in this ground nor is it reasonably arguable.

17.  In his affirmation he submits several grounds against the adjudicator but without clarity or order. I can surmise that he submits the adjudicator failed to sufficiently research and enquire into Country of Origin Information.  He failed to consider whether there were flagrant human rights abuses in Pakistan and whether State protection was available.  These grounds can be dealt with swiftly on the basis that the adjudicator dismissed the applicant’s claim on credibility.  As a result, he did not need to consider in any depth the above considerations.  There is no merit in the above grounds.

18.  The applicant suggests there were errors of law but there are no particulars and I find none.  The applicant also submits the adjudicator made errors in his finding of facts which I have said above were succinct, well considered and in great detail.  The adjudicator did not accept many of his explanations, finding many weak and implausible.  He was entitled to make those reasonable findings.  There is no merit in this ground.

19.  I do not find any ground that shows there was an error of law by the adjudicator or the Director either.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by either decision maker.  The substantive decision of the adjudicator did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the Notice of Further Decision of the Director dated March 2017.

20.  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