KIANI MUHAMMAD ISRAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1675/2018

[2019] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1675 OF 2018

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 be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani national who entered Hong Kong illegally by boat on 16 December 2015 only to be arrested the same day. He made an application for non‑refoulement protection on all applicable grounds.  That claim was rejected by the Director of Immigration (“the Director”) on 15 September 2017.  The applicant appealed that decision to the Torture Claims Appeal Board (“TCAB”) and the appeal was dealt with and rejected on 9 August 2018.  

2.  The applicant filed a notice of application for leave to apply for judicial review on 20 August 2018.  He did not request an oral hearing therefore; I intend to consider this application on the papers.

3.  The basis of his claim was that if he were to return to Pakistan he would be persecuted, harmed or threatened by members or supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”) party and he left Pakistan because of his fear of those party members.  He is a supporter of an opposition party, the Pakistan Tehreek-e-Insaf (“PTI”) party.  The adjudicator of the TCAB set out the applicant’s evidence in great detail.  She set out a chronology of his claim for protection in great detail.  She conducted a hearing on 16 May 2018 and the applicant was given an opportunity to give evidence.  She set out his evidence in great detail.

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 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 correctly set out the law and key legal principles for the four applicable grounds.  She then in minute detail compared his evidence and claim made to the Director and compared it to his evidence at the appeal hearing.  She assessed his evidence and found that the applicant had fabricated his claims in order to apply for non‑refoulement protection and extend his stay in Hong Kong.  She set out her reasons why she reached that conclusion.  She set out the number of significant inconsistencies in his evidence; in particular, the material and serious inconsistencies.

6.  The adjudicator concluded that he was not a witness of truth; she did not believe he joined the PTI and was in great danger because the PML(N) were looking for him to kill him.  She took into account that inconsistencies in evidence can be explained by the passage of time, the vagaries of memory and the applicant’s own circumstances but nonetheless concluded that he fabricated his evidence.

7.  The adjudicator found the applicant was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan.  He had failed to show that returning to his country of origin would expose him to a real risk of a violation of his rights to life so as to constitute a breach of BOR 2.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

8.  The applicant has sought leave to judicial review the decision of the TCAB.  In his affirmation to support his application he does not set out any grounds but states he is applying for judicial review because his problems at home have not been solved and he would still be in danger if he returned to Pakistan.

9.  There is a second document submitted by the applicant on 20 February 2019 that sets out grounds to support his application.  He suggests that the decision‑makers decided his claim only with the help of references to the Pakistan government official website.  He suggests that the Pakistan government website is bias and hiding the truth of atrocities in Pakistan.

10.  He suggests that he fled from Pakistan because his enemies were strong and political, in addition the police were corrupt.  He mentions a refugee named Abdul Rehman who was repatriated to Pakistan by the Hong Kong Immigration Department only to be killed by his enemies.  He suggests that the murder was in newspapers and broadcast on television.

11.  A reading of the adjudicator’s decision makes it clear that she did not only rely on a website but considered relevant country of origin material, relevant authorities and did consider the law and key legal principles.  The applicant told her about the refugee who was refouled from Hong Kong and subsequently murdered.  She did look into the media reports and found a report of a man who had recently returned to Pakistan from Hong Kong and found dead from gunshot wounds.  She is not certain it is the same man the applicant referred to but she found no evidence that the circumstances of that man who was shot and killed were similar to the applicant’s circumstances.  In any event, she found that he did not leave Pakistan because he was in fear of his life; he was not a genuine claimant.

12.  I have considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I find the adjudicators thorough decision-making process to be without fault.  She carefully considered the applicant’s evidence and gave full reasons for her finding that the applicant was not a genuine applicant and therefore unable to succeed in his non-refoulement protection claim. I will not interfere with her decision.  I do not see any error of law made 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.

13.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply 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