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

HCAL 1664/2018

[2019] HKCFI 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1664 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 male who entered Hong Kong on 7 March 2013.  The applicant lodged a non-refoulement protection claim on 7 October 2013 which was rejected by the Director of Immigration (“the Director”) on 20 October 2015 and 13 December 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 August 2018.  The applicant filed a notice of application for leave to apply for judicial review on 17 August 2018.  He has not requested an oral hearing.  

2.  The basis of his claim was that if he were to return to Pakistan he would be harmed or even killed by his uncle and his cousin because his own father had refused his uncle’s request that land from a family inheritance be equally shared with his cousin.  The Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, there is no need for me to repeat it.

3.  The applicant’s grandfather died in 2010 and bequeathed a piece of land to the applicant’s father.  The applicant’s uncle had no share in it but that was his grandfather’s wish and will.  The uncle was unhappy and insisted that his own son should have 50% of the land and made threats. These threats were reported to the police but to no avail.  The applicant assumes that it was because his uncle is a supporter of the political party in power at that time.  In mid-2012 the applicant’s cousin came to their home one evening with two other men armed with guns and his cousin shot dead two of the applicant’s brothers.  The applicant was hiding in his bedroom at the time and immediately fled his home to stay with a friend in Islamabad until he left Pakistan on 2 March 2013.

4.  The applicant only had one telephone conversation with his father after he fled his home but before he left Pakistan; he has had no contact since but there is no reason for that.

5.  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”).

6.  The adjudicator treated the appeal as a rehearing and directed that an oral hearing be conducted.  The applicant appeared but did not elect to give evidence.  He set out the law and key legal principles for all four applicable grounds.  The adjudicator did not find the applicant’s evidence credible or truthful.  He set out why he had reached that conclusion in his decision.

7.  He went on to consider the applicant’s evidence as if he believed him and concluded the applicant, on his own facts, had not made out a successful case on any of the four grounds.  He was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan.  He set out the objective, up-to-date and relevant country of origin information she relied on.  The adjudicator confirmed the decision of the Director.

8.  The applicant’s affirmation contains two grounds; he should have been provided with a lawyer and legal representation at his TCAB hearing and secondly the Director did not afford him an interview before rejecting his BOR 2 risk claim.

9.  My view is that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, the applicant has already utilised the channel of appealing the Director’s decisions to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  To seek to judicial review both decision makers is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

10.  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 applicant said it was unfair on him; 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.

11.  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 unfair or a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

12.  Even if the applicant could apply for leave to apply for a judicial review of the director’s decision as well, the second ground is without merit.  In the Director’s notice of further decision dated 13 December 2016, the Director did not receive any reply from the applicant to provide additional materials or facts on a BOR 2 risk claim for the consideration of the Director.  He took it that the applicant had no additional information to provide.  This meant there was no requirement or need to conduct another interview or hearing; there was no new evidence or submissions.

13.  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.  The same applies to the decision of the Director.

14.  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