MUHAMMAD AZAM v. DEPUTY CHAIRPERSON OF THETORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 161/2017
[2018] HKCFI 4

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 161 OF 2017

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J U D G M E N T

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1.  The applicant is a Pakistani national who lodged a claim for non-refoulement protection which has been rejected by both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“TCAB”). He now seeks leave to judicial review the decision of the adjudicator of the TCAB.

Background

2.  The applicant has a complicated Immigration history in that he has twice sneaked into Hong Kong illegally to claim asylum. He first sneaked into Hong Kong in July 2006 and remained undetected for 18 months until he was arrested in February 2008.  He lodged a torture claim in August 2008 which he withdrew in September 2012 before he went home. The applicant claimed to have left Pakistan again on 15 August 2013 for Mainland China.  He claimed to have entered Hong Kong by boat on 10 September 2013 only to have been arrested by the police on 11 November 2013.  Two days later he lodged his second non-refoulement protection claim.

3.  The Director rejected his claim on 21 December 2015 and 10 February 2017.  The TCAB rejected his appeal/petition on 10 April 2017.  The basis of his claim was that if he were to return to Pakistan he would be harmed or even killed by a Sunni Muslim called Mushtaq and his people; all from the applicant’s home village who had been targeting him for years because he was a Shia Muslim.

4.  Both the Director’s and TCAB’s decisions contained a careful analysis of the facts and claim; setting out his evidence from before both illegal entries into Hong Kong.  I will summarise it here. The applicant was born a Shia Muslim in 1957 and still lives in Sialkot, Punjab; he has farmed all his life.  He lives there with his parents, wife and four children.  He says in a village of about 150 homes there are two other Shia families; the rest of the villagers are Sunni Muslims.  Amongst them are a group, Mushtaq and his people, apparently rumoured to be associated with the banned terrorist group, Laskar-e-Jhangui (“LJ”) who call the Shias non-Muslims/non-believers.

5.  In 2005, the applicant became active in Shia activities in the Mosque 1 km from his home where male members prayed regularly. Monthly prayer meetings called Majlis, were attended by local scholars from nearby.  Problems began for the applicant in about 2005 when Mushtaq and his people began harassing the applicant accusing him and Shias of not following Muslim doctrines; as a result, he did not attend several monthly prayer meetings in 2005.  He did not report this to the police but fled to Malaysia fearing for his safety in June 2005.  He did not seek asylum protection in that country because he did not know how to and returned home to normal life several months later in September.

6.  The first incident took place on 6 June 2006 when Mushtaq and four of his men confronted the applicant with batons, tied him to a tree and hit his body.  They said they had warned him not to attend monthly prayers and he had ignored them.  They threatened to kill him if he continued to go.  They left him tied up.  He suffered bruising but did not seek medical attention.  He did report four of the attackers to the police and registered a First Information Report (“FIR”).  The applicant heard the attackers were arrested and released within two days.  Yet the police officer told him the investigation was still in progress.  That police officer verbally stopped him approaching the senior police officer at another police station.  The applicant assumed the police were frightened of powerful people; meaning Mushtaq and his people.

7.  The applicant encountered Mushtaq and his people again in mid‑July 2006 with one man carrying a gun.  They warned him not to attend monthly prayers or they would kill him.  They said it was his last warning.  The applicant did not report this to the police.  He did not attend any more prayer meetings after this.  He entered Hong Kong illegally within several days of this threat.

8.  The applicant approached the United Nations High Commissioner for Refugees (“UNHCR”) in 2006 in Hong Kong and applied for Refugee status which was rejected in 2008.  The applicant lodged a torture claim in August 2008.  On 17 September 2012, he wrote to the Immigration Department to withdraw his torture claim because he was returning to Pakistan. On 16 November 2012, he returned home voluntarily.

9.  The second incident involved his wife and took place when his wife was attacked whilst she was on the roof raising a Shia flag one day in November 2012.  He says he was told Mushtaq’s sons threw bricks at her and she suffered a head injury.  Apparently, other Shia families were targeted that day too.  She required surgery and was admitted to hospital for 13 days.  There was a hospital discharge slip submitted into evidence.  She returned home and still lives in the same house to date with their children. He left Hong Kong not long after this incident.

10.  The third incident took place in December 2012 when the applicant was selected to be the vice president of the Shia Muslim organisation in his village because of his long dedication and service, this is  despite his time in Hong Kong between 2006 and 2012.  There were five members of the organisation in his village.  Not long after, the applicant was attacked by Mushtaq and his people, slapped, punched and sworn at.  The applicant suffered some bruising.  He did not report the matter to the police.

11.  The fourth incident took place in April 2013 when the applicant was going shopping and was about one and half kilometres from his home village.  He came across Mushtaq’s son and some unknown people who insulted him with foul language.  They insulted him and his Shia religion. The applicant did not report this matter to the police but after this seldom went to his mosque.

12.  After this incident, the applicant felt his life in danger so went to the Oman to escape this harassment on 8 April 2013 with a two-year work Visa.  However, his employer cancelled his work Visa in July 2013 and he had to return home to Pakistan.  The applicant was sure but had no direct proof that this was because Mushtaq came to know of his whereabouts and job so used his connections to put pressure on the applicant’s Oman employer to cancel the applicant’s Visa.

13.  The last incident involving Mushtaq took place in July 2013 after the applicant returned from the Oman.  The applicant was waiting for a bus to Sialkot city when Mushtaq and three of his men appeared and tried to pull him into a vehicle.  One man held a gun to him to force him but a military vehicle drove by at that moment. Mushtaq and his men let him go but threatened him.  The applicant went to the police station that same day and filed a report against them.  That night, the police arrested two of Mushtaq’s men.  However, the next day the applicant saw those two men had been released so he made enquiries with the police.  The police officer told him the investigation was still in progress and he need not report the case to a more senior police officer.  The applicant thought the police were not investigating his report.  He says police corruption is rife.

14.  Two days later, the applicant met Mushtaq and his men who asked why he had reported the matter to the police and before they left, they said they would not spare his life again.  The applicant left his village the following day to avoid them.  The applicant went by vehicle to Islamabad, a 4-hour journey and hid there for about a month before flying to China on 15 August 2013.  He then paid an unknown Pakistani man HK$10,000 to take him to Hong Kong by boat.

15.  The applicant’s family still live in the same village and attend prayers at the same mosque regularly.  They suffer no harassment from Mushtaq and his men; it has only ever been the applicant.  The applicant does not believe he can live anywhere else in Pakistan because of the widespread discrimination and persecution suffered by all Shia Muslims.

16.  The TCAB 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”).

17.  The Director considered the applicant’s claim, evidence, Country of Origin (“COI”) material and found the level of risk of harm from Mushtaq and his people from LJ because the applicant was a Shia Muslim if he were to be refouled to Pakistan was low.  The Director found according to the available COI he referred to and was referred to by the applicant’s legal representative that there was reasonable State protection available to the applicant in Pakistan.  That availability further lowered or negated the claimed fear, if it truly existed.  He found, if it did, it was a localised problem in the neighbourhood of his home village.  Internal relocation was a viable option for a man who had education, work experience and farming experience.  He noted there were places in Pakistan with no reports of Shia casualties for more than a decade.

Appeal/petition before TCAB

18.  The applicant appeared unrepresented before an oral hearing conducted by the TCAB.  An interpreter was arranged to assist the applicant on the day.  He received the appeal bundle with the Director’s skeleton argument prior to the hearing.  In that bundle, were copies of the applicant’s previous interviews and his non-refoulement claim form (“NCF”).  The TCAB’s decision contained a summary of the facts, as well as the law and key legal principles relating to the four applicable grounds.  The adjudicator set out the COI information he referred to and relied on.

19.  As far as the torture risk is concerned, the adjudicator considered the definition of torture under section 37U(1) of the Immigration Ordinance.  Mushtaq and his men/the banned terrorist group, LJ, were definitely not public officials and certainly no severe pain or suffering was inflicted by, or at the instigation of, or with the consent or acquiescence of a public officer, or other persons acting in an official capacity.  The purpose of the verbal threats had no connection with the interests or policies of the state or its organs.  The purpose did not fall within the definition of torture under the Ordinance.  The adjudicator did not find evidence of official acquiescence nor evidence of passive acquiescence.  Counsel for the applicant submits passive acquiescence was put forward as part of the applicant’s case and ignored.

20.  The Adjudicator found on the applicant’s own evidence he had not suffered severe pain or suffering, whether physically or mentally in his described confrontations with his enemies.  He went on to find no evidence to establish substantial grounds showing a foreseeable and real risk of torture if refouled to Pakistan.  The adjudicator found the applicant’s torture risk failed.

21.  The adjudicator said in para 15 he took note of the Director’s decision where he has explained in detail why the applicant is safe to return to Pakistan.  He refers to part “A” of the Director’s decision which is substantial and covers the COI material and reports, State protection and internal relocation.  The adjudicator then immediately proceeds to summarise the COI he refers to before finding there are measures in place to eliminate corruption through awareness, prevention and enforcement.  He acknowledges serious religious tension between Shia and Sunni Muslims but it is not as serious as the applicant portrays.

22.  The adjudicator went on to assess the facts of this case under BOR 3 and found the applicant had not suffered any severe injury or serious harm which would place him within the criteria of CIDTP.  The applicant had been unable to show any substantial grounds that have led him to believe he will face a future risk of serious harm.  In any event, the adjudicator made a finding there was State protection available if there was any risk and he was safe to live in Pakistan in any other place other than his home village.  The adjudicator found his BOR 3 risk claim failed.

23.  There was no evidence if he returned to Pakistan he would be exposed to a risk of a violation of his right to life that would constitute a breach of Article 2, his BOR 2 risk claim failed.

24.  The adjudicator found his persecution risk claim failed because he had not suffered severe injury or serious harm, the applicant had no well‑founded fear of such harm, there was evidence of State protection and the harm did not come under one or more of the Convention categories.  The adjudicator said even if he was at risk of persecution, because he could relocate internally, a claim and persecution risk claim would still fail.

25.  The adjudicator did go on to consider the applicant’s credibility.  He did set out several reasons why he did not find him a credible and honest witness but did stress that the applicant would have failed in his appeal anyway even if he had found him a credible claimant.

Leave to apply for judicial review

26.  In the amended notice of application and supporting affirmation there are 11 grounds for seeking leave;

(1) the adjudicator erred in law in failing to consider relevant evidence;

(2) the adjudicator erred in law in failing to refer to adverse COI;

(3) procedural impropriety/unfairness (failure to consider lack of protection of, threat to and hardship faced by Shia Muslims);

(4) irrationality (the finding the applicant’s persecution did not come under any Refugee Convention reason);

(5) erred in law (the finding the applicant’s enemies did not come within the meaning of populace);

(6) erred in law (when can assaults constitute torture);

(7) erred in law (improper rejection of hearsay evidence);

(8) and (9) irrationality (what facts can undermine credibility);

(10) erred in law (relating to the definition of persecution); and

(11) procedural unfairness (the adjudicator relied on COI material not provided to the applicant prior to hearing or translated to him).

27.  In an application for leave to apply for judicial review, the court will examine if the adjudicator has made any error of law and/or failed to adhere to a high standard of fairness as expected and explained in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.

28.  The court will also consider with rigourous examination and anxious scrutiny the papers and grounds of any such application and ensure the decision satisfies the enhanced Wednesbury test; AM v Director of Immigration & anor [2014] 1 HKC 416, para 34.

Grounds 1, 2, 6 and 7

29.  Counsel for the applicant has grouped these grounds together for the purposes of his submissions and it makes sense I deal with them in the same manner.  These grounds accuse the adjudicator of errors of law; failing to consider relevant evidence and giving adequate reasons for his findings.

30.  Ground 1 lists five points the applicant submits are relevant evidence the adjudicator erred in law in failing to consider.  I will say from the outset, the adjudicator did consider them, he did not ignore them but he did not consider them in the applicant’s favour. There is no merit in this ground.

31.  Ground 2 is a complaint by the applicant that the adjudicator has erred in law where he has made seven findings by failing to refer to adverse COI material and/or given adequate reasons for those findings.  This rather convoluted ground needs to be divided up.  Findings a, f and g were not as a result of referring to COI material.  Findings b, c, d and e were opinions and findings of the adjudicator’s after reference to COI material and the adoption of the Director’s findings.

32.  The submission is that the adjudicator failed to refer to adverse COI, in particular I have been referred to a list of Shia Muslims killed in Pakistan.  The adjudicator is criticised for failing to specifically refer to this material amongst the material submitted by the applicant (Exh AM22 of the applicant’s second affirmation).  This list of those killed and injured annually since 2001 was compiled by the SATP, the South Asia Terrorism Portal.  This is purely statistical data only and offers no opinion or imparts no knowledge into the conflict between Shia and Sunni during that period of time.  The information was in the appeal bundle which both the adjudicator and the applicant had for the purposes of the hearing.

33.  The fact is, when discussing COI material at the hearing, the applicant agreed with the adjudicator that Sunnis who openly attack Shias will get into big trouble.  This agreement from the applicant coupled with COI material referred to, will lend itself to the adjudicator making the findings listed in ground 2 that the applicant finds so disagreeable and abhorrent.  That agreement from the applicant neutralises or makes much of his material submitted redundant.

34.  Ground 6 is another error in law by the adjudicator which can be dealt with swiftly.  The complaint is, I quote “the adjudicator made a finding that assaults do not constitute torture unless inflicted by someone acting in the official capacity of the state”.  However, the adjudicator goes on to say in the next sentence, the applicant here was not assaulted by someone acting for or on behalf of the national government.  In para 5 he clearly set out the definition of torture correctly; including, but not limited to, by whom it was to be inflicted by or at the instigation of.  He also in para 7 considers the concepts of official acquiescence and passive acquiescence.  He was obviously well aware of the definition and I find this ground without merit.

35.  Ground 7 accuses the adjudicator of refusing to consider relevant hearsay evidence. The adjudicator is accused of erring in law in finding that only evidence of a “personal encounter” by the applicant could establish grounds of a risk of torture. This relates to the applicant’s evidence that whilst he was in Hong Kong he was told his wife was attacked and injured in November 2012 whilst hanging a Shia flag on their roof.  This was also referred to in ground 1(a).  Counsel for the applicant submits the incident was very relevant to the applicant’s claim yet ignored by the adjudicator.  The adjudicator pointed out the applicant’s account of the incident was hearsay and in any event, did not involve him.

36.  The applicant’s wife continues to live in the same house after this incident without harassment or trouble.  The applicant returned from Hong Kong after withdrawing his first torture claim and continued to live in the same house with her.  He was not in Pakistan when she was injured, the incident did not relate to him, his wife is not a subject of this claim and she has not been in danger since the incident.  She is not a “similarly placed person” as submitted.  If she was such a person she would have fled with him or fled the village.  This is why the adjudicator is correct to take the view the incident does not go towards advancing the applicant’s claim.

37.  The adjudicator nowhere in his decision says that only evidence of personal encounter can establish substantial grounds of a risk of torture. The words “personal encounter” have been taken from his para 6 and a reading of the whole of para 6 of his decision and the reference to the two authorities quoted clearly demonstrate that was not what he meant. There is no merit in ground 7.

38.  There are specific submissions that I should deal with including the submission that the adjudicator did not acknowledge there was a threat to kill the applicant (in relation to ground 1).  This submission is weak and unmeritorious.  The adjudicator found on the facts there was no evidence the applicant had been tortured in the past.  No severe pain or suffering whether physically or mentally was intentionally inflicted on him and he went on to find the evidence did not establish substantial grounds showing a foreseeable and real risk of torture in the future.  This clearly had to include a consideration of the verbal threats made to the applicant as they were “part of the facts”.

39.  Much is made of the adjudicator’s failure to properly consider passive State acquiescence (ground 2) when it is submitted the applicant’s case was based on his fear of local LJ militants targeting Shia Muslims as well as other militants elsewhere in Pakistan.  I quote para 12(iv) of Counsel’s submissions “the applicant’s case all along was that he was threatened by non-state actors, and that, the police had failed to protect him in the past, and that the state could not protect him anywhere in the country. He had put passive state acquiescence squarely in issue.”

40.  The adjudicator thought otherwise; the applicant’s “thoughts” on the police investigation or lack of, were not evidence of facts.  He made a total of two police reports, one in 2006 and again seven years later in 2013.  In between those two reports, he had returned home from Hong Kong having withdrawn his torture claim.  In an interview with an Immigration officer he said he was told by the police officer in 2013 when he asked on at least two occasions that they were continuing to investigate his complaint.  He then left Pakistan without knowing if they stopped investigating or refused to investigate.

41.  It was not put forward as part of the applicant’s case that there was State acquiescence or extended or passive acquiescence.  In any event, the adjudicator did consider it and in para 7 of his decision he found no evidence of official acquiescence or passive acquiescence. Even if this police officer and the one in 2006 can be accused of failing to protect the applicant deliberately, it is not every failure to exercise due diligence that will be within the definition of extended form of State acquiescence.  The failure must be gross or of such a scale, that in it enables those persecuting the claimant to do so without impunity.  In this case, even if this police officer failed the applicant and did not properly investigate, which there is no evidence of, he may be one rogue officer and not indicative or representative of the entire police force in that district.

42.  As for his fear of militants in the rest of Pakistan, (this has been raised in grounds 1, 2 and 3) it was never put forward that he had been persecuted, tortured or threatened anywhere other than his home locality.  It was not put forward that he had a well-founded fear of persecution anywhere other than his home locality.  It was not put forward that he was personally at risk of torture anywhere in Pakistan because of his religious affiliation.

43.  The adjudicator in paragraph 6 of his decision referred to the authority RS CACV206/2012 and I quote from paragraph 59. It applies to this applicant;

“we are of the view that the same applies in respect of material facts supporting a claimant’s belief that there was state involvement or acquiescence in the risk or threat of torture posed by a non-state agent. The burden being on a claimant to prove a case of torture within the meaning of CAT, he or she must put forward some factual basis to support such belief before the director can be expected to investigate on it. Such factual basis must be personal to him or her either in terms of knowledge or experience because, as it has been said repeatedly in CAT jurisprudence, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return. It has to be shown that he will be personally at risk,..”

44.  In fact, it was only mentioned by this applicant in the context of internal relocation.  He claimed that internal relocation was not an option for him because Shia people are discriminated everywhere in Pakistan, see answer 35 of his NCF (Exh AM18 of the applicant’s second affirmation).  At the same time, and with seemingly equal importance to him, he also suggested internal relocation was not a safe option for him because he had strong ties with his land, property and family in Punjab.

45.  I see no fault in the adjudicator’s focus on the risk from Mushtaq and his men rather than a countrywide risk because that was the basis of the claim put forward by the applicant.  The countrywide risk was confined to the question of internal relocation.  The basis of his claim seems to have broadened in this application to include threats to his life anywhere in Pakistan solely based on the fact he is a Shia Muslim which was not the basis of his claim before the Director or the adjudicator.

46.  The applicant did produce COI material relating to persecution of Shia Muslims (that material did not refer directly to him or Mushtaq or his men) but they were not produced for the purposes of proving it was unsafe for him everywhere in Pakistan.  A reading of his non-refoulement protection claim and subsequent interviews with Immigration officers and the presence of his legal representative makes no mention of this concern as evidence to consider as part of his claim.  As I have said above, it was only brought up to argue that internal relocation was not an option and even then it was not his primary and only concern.  There were other equally important concerns to him.

Ground 3

47.  The adjudicator failed to conduct sufficient COI enquiry particularly as the applicant was unrepresented.  I am mindful the adjudicator and the applicant are part of a joint endeavour in an appeal of this nature.  However, the applicant has been through numerous interviews with the assistance of legal representation and submitted his own COI material.  He has had sight of the appeal bundle prior to the appeal hearing containing all his own material and that of the Directors he has seen before.  I am satisfied he had the opportunity to speak if he had anything to say.

48.  The adjudicator has given sufficient reference to relevant COI to support the findings he makes.  I also find he has incorporated and adopted the Immigration officer’s Notice of Decision, part “(A)”, see para 15 of his decision.  Part A explains in detail the Director’s reasoning why the applicant is safe to return to Pakistan; it covers why State protection is available if he is at risk and why internal relocation is a viable option, it sets out in detail with good reference the relevant COI material.  With this adoption, this ground is not reasonably arguable.

Grounds 4, 5 and 10

49.  The three grounds are connected and relate to the adjudicator’s decision that;

(1) the applicant’s persecution risk did not come under any Refugee Convention reason;

(2) his enemies cannot be described as “populace” within the meaning of Refugee law and therefore cannot persecute him and;

(3) lastly, the applicant had not suffered severe injury or serious harm which would place him within the criteria of persecution.

50.  The Refugees Convention has never applied in Hong Kong. However, in C & Ors v the Director of Immigration & anor FACV 18, 19 & 20/2011 the Court of Final Appeal held that the Director must assess whether a Refugee claim is well-founded when deciding whether to exercise the power under the Ordinance to remove a Refugee claimant to a risk country.  The non-refoulement principle applies to applicants who are Refugees as defined in Article 1A of the Refugee Convention, as any person who:

“…owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

51.  This definition has several elements for consideration.  First, the applicant must be outside his or her country.  Second, he must fear persecution.  It is not defined and what amounts to persecution will depend on the circumstances of each case.  There must however, be a minimum level of severity.  Third, persecution feared must be for one of the reasons set out in the Refugees Convention definition, namely a person’s race, religion, nationality, membership of a particular social group or political opinion.  That means, there must be an objective basis for holding such a fear.  A person has a well-founded fear of persecution if they have genuine fear founded upon a “real risk” or a “real chance” of being persecuted, as per Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62. A fear based on mere speculation is not enough there must be a real substantial basis for it to be well‑founded.  A “real risk” is one that is not remote, far-fetched or insubstantial.

52.  Lastly and perhaps almost a second limb, an applicant must be unable, or unwilling because of their fear, to avail themselves of the protection of their country.  An applicant must be able to establish this limb as well as the other elements in order to qualify as a Refugee.  Therefore, even if a well-founded fear is established, if State protection is available but an applicant cannot establish they are unable or cannot show why they are unwilling to avail themselves of that protection then, they should not qualify for Refugee status.

53.  This applicant has not deviated from the basis of his claim in that the harm he fears comes from Mushtaq and his people targeting him because of his Shia faith and supposed activities in a Shia political party in his local area but details were lacking of those activities.  This could, contrary to the adjudicator’s finding, fit within the categories of religion and maybe even, political opinion.

54.  Persecutors need not be only related to action by the authorities of a Country, they can be committed by non-State actors; sections of the population or the local populace or a group.  But that does not mean it has to be a quantifiable or sizeable number of persecutors.  Any number of authorities or even examples of persecution will demonstrate this.  To find that persecution by a non-State actor was required to be by a sizeable, as in large, portion of the population and cannot be a small group of men cannot be correct.

55.  The adjudicator makes a statement that there must be a minimum level of severity, serious violation of human rights, or serious or intolerable harm to place the applicant within the criteria of persecution.  He means the applicant must have suffered severe injury or serious harm before it can be considered whether he had a well-founded fear of being persecuted.  That statement is not accurate.  An applicant does not have to have suffered severe injury or serious harm in the past in order to bring himself within the definition of persecution.  It is true that the most recognised form of persecution is the infliction of physical harm including torture and kidnapping but not the only form.

56.  The applicant must establish he has a well-founded fear at the time his claim is being assessed; good grounds for fearing persecution in the future.  He must establish that he has a subjective fear of persecution and also that the fear is well-founded in an objective sense.  Evidence of past persecution is one of the effective means of showing that a fear of future persecution is objectively well-founded.  If there is a pattern of long-standing persecution, then there is a likelihood that behaviour will continue.  However, severe injury or serious harm is not a necessary factual element to establish persecution.

57.  Although I agree these three grounds have merit, his errors may become immaterial when the adjudicator’s finding of available State protection is considered as well as the viable option of internal relocation.  Even if the applicant had succeeded in establishing he had a well-founded fear of being persecuted by the local populace, even if he had proved serious discriminatory or offensive acts were committed by Mushtaq and his people on him and even if those acts were defined as persecution, he was not persecuted by the State.  Therefore, if there was State protection available to him should he still get Refugee status?

58.  If the persecution is knowingly tolerated by the authorities and all of the authorities refuse to offer effective protection to him than the applicant would qualify for Refugee status but if the adjudicator finds there is State protection available in Pakistan then the object of the Convention surely must dictate that applicant will not require its protection. The purpose of the Convention is to protect a persecuted Refugee who cannot get protection in his own State.  This is discussed at length in Horvath v Secretary of State for the Home Department [2000] UKHL 37.  In that authority, reference is made to Canada (Attorney General) v Ward (1993) 103 D.L.R (4^th) 1, 12 where La Forest J said,

“International Refugee law was formulated to serve as a backup to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states became engaged.”

59.  These three grounds initially have merit and the errors may or may not have been material but the end result would have been the applicant would not have succeeded in this persecution risk claim because State protection was available and internal relocation was a viable option.  Essentially, the applicant cannot or does not show he is unable or unwilling to because of his fear, avail himself of the protection in Pakistan, the second limb of what must be established under Article 1A of the Refugee Convention.  In fact, when he orally agrees with the adjudicator that he can get help and protection when he is assaulted or harassed by Mushtaq he cannot establish the second limb.  This means these three grounds would not be reasonably arguable.

Grounds 8 and 9

60.  These grounds have no merit; the adjudicator can consider the fact the applicant failed to raise a torture claim as soon as he arrived in Hong Kong and it may affect his credibility.  He can consider the fact he entered the territory illegally as well.  The legislation makes provisions for what the Immigration Department or the TCAB can take into account that will affect the credibility of an applicant; S37ZD Cap 115.  The section covers those facts the adjudicator considered relevant.  This is particularly pertinent for this applicant who has entered Hong Kong twice and both times illegally.  The first time he remained undetected for 18 months before he was arrested; and only then did he lodge a torture claim.  He withdrew his first torture claim voluntarily and went home.  He came back again seeking protection because his life was in danger but did not immediately seek protection upon arrival in Hong Kong despite knowing full well the procedure.  He remained underground for two months and only lodged this non-refoulement claim after he was arrested.  The adjudicator gave him the opportunity to explain why there was a delay which he rejected.

61.  The adjudicator found other reasons to find the applicant unreliable but stated the appeal had failed independently of a lack of credibility.  The adjudicator also considered it relevant and affecting the applicant’s credibility that there was a written refusal from the applicant to give consent to the Director to have sight of the information which he had provided to the UNHCR when he applied for Refugee status in 2006.  He had to give a written reason for refusing consent and that was he would like to keep that information confidential from the Director.

62.  Naturally, the adjudicator asked the applicant about this refusal to disclose that information which raises suspicions and the applicant denied it.  He denied he had refused consent, he recalled giving consent to the lawyer representing him at the time but could not deny he had signed to acknowledge his answer indicating a refusal and the written answer that he would like to keep it confidential which makes no sense in view of his recollection of consent.

Ground 11

63.  The adjudicator relied on COI material not provided to the applicant prior to the hearing or translated to him at the hearing.  The applicant has filed a second affirmation affirming which documents referred to in the adjudicator’s decision were not provided to him.  The decision itself makes no mention of this; it only offers a summary of the relevant COI and the conclusion there is reasonable State protection available and internal relocation is a viable option.  If the adjudicator did find his own COI material he should have provided it to the applicant and to be fair to him, given the interpreter time to read it to him.

64.  I have had sight of an uncertified transcript of the oral appeal hearing and in it the adjudicator does specify some publications were his own, not the Director’s and not in the bundle.  He only repeats the titles of the publications to the applicant. There is no indication that he will go on to have the relevant content he relies on read to the applicant.  I would say this would be an issue and a procedural impropriety in an appeal/petition but here the adjudicator, after reading out the titles goes on to ask several questions of the applicant.  His answers support the adjudicator’s findings and publications.

65.  The applicant agreed that there are efforts to unite Shia and Sunnis together and those who discriminate against Shias run into trouble.  More importantly, he agreed that if he were to be harassed and assaulted by Mushtaq he could go to the police, complain and get protection.  The adjudicator repeated the question again by saying “you can get help?” and the applicant replied “yes”.

66.  From the decision, it is clear the adjudicator took these answers to mean the applicant agreed with the adjudicator’s own conclusions he drew from the COI material.  In that case, there was no need for him to go through and have read out the content of the material he relied on.  In this case, there is no procedural impropriety.

67.  There are several publications quoted in the decision that refer to the population and size of Pakistan and several large cities.  The applicant says he did not have sight of those prior to the hearing which I accept is the truth.  One of the questions asked of the applicant by the adjudicator was whether he knew the size of the population of Pakistan and Karachi and he said no.  He said he did not know the population in different cities.  The adjudicator told him that he had looked at the population of Lahore, Islamabad, Rawalpindi and Gujrat City and there are millions of people living in each city.

68.  The purpose of that information was to ask the applicant what was the chance of Mushtaq finding him in one of those big cities; he said it was a small chance.  The adjudicator did not properly and fully go through the contents of those publications but he in very broad terms summarised what he took from those material and that was that those big cities were very populated and put that to the applicant.  It is barely sufficient but not procedurally unfair or improper, mainly in light of the applicant’s answer. It is abundantly clear, especially in light of his answers that the disclosure of the new documents would not have made the slightest difference to his appeal. He was not prejudiced; I referred myself to Leung Fuk Wah Oil v Commissioner of Police CACV 2744/2001.  There is no merit in ground 11.

Further application after court adjourned for deliberation

69.  On the hearing date, I refused an application to adjourn for the purpose of the applicant to obtain and hear the audio tape of the appeal hearing.  No specific reason could be given for that purpose and I found the objective was a fishing exercise therefore, I refused the application.  After hearing submissions for leave I adjourned and reserved my decision.  Three weeks later, solicitors for the applicant filed a further ex parte summons applying for leave to re-amend the Form 86 and add a further ground, applying for leave to file further evidence by way of another affirmation and applying for leave to file a supplemental submission attaching an unofficial uncertified transcript of the audio recording of the oral appeal hearing.

70.  It would generally require an exceptional case before the court is prepared to accede to consider additional amendments and evidence after it has adjourned to consider its decision, see Charlesworth v Relay Roads Ltd & Others [2000] 1 WLR 230.  I did consider the additional submissions and amendment; I saw no merit in the additional ground and the transcript was of minimal assistance to the claimant.  From the transcript, the adjudicator was accused of misstating the applicant’s evidence, considering irrelevant matters and acting unfairly which were sweeping accusations I disagreed with.  I did not grant leave to further amend the Form 86, produce a further affirmation or additional evidence or submissions.

Conclusion

71.  After a careful examination of the submissions 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.  None of the grounds put forth by the applicant were arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Chan & anor (2007) 10 HKCFAR 676 paras 14-17. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success and I refuse leave for judicial review.