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HCAL 320/2017
[2018] HKCFI 694
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 320 OF 2017
| BETWEEN |
KHAN MUHAMMAD TANVEER |
Applicant |
And |
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TORTURE CLAIMS APPEAL BOARD |
Putative Respondent |
| And |
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DIRECTIOR OF IMMIGRATION |
Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by the Honorable Madam Justice D’Almada Remedios
Leave to apply for Judicial review refused.
Observations for the applicant:
Introduction
1. The Applicant is a Pakistani National and applies for judicial review of the decision of the Director of Immigration (the Director’s Decision) dated 21 March 2016 and the Adjudicator[1] of the Torture Claims Appeal Board (“the Adjudicator’s Decision”) dated 27 May 2017 in which his claim for non re-foulement was rejected.
Case History
2. The Applicant lodged submitted a Non-Refoulment Clam (“NRC”) Form on 12 August 2015. On 7 January 2016, he attended a screening interview with the Director of Immigration (“the Director”)[2].
3. As a result of the commencement of the Unified Screening Mechanism (“the USM”)[3] a letter, dated 23 February 2017, was sent to the Applicant by the Director inviting him to submit additional facts relevant on all applicable grounds for non-refoulement protection claim expressly specifying additional facts relevant to his right to life under Article 2 of the HKBOR (BOR 2/ BOR 2 risk) on or before 9 March 2017.
4. No additional information was produced by the Applicant on or before the deadline. Subsequently, a Notice of Further Decision was sent to the Applicant on 15 March 2017 informing no further information was produced on or before the deadline.
5. The Applicant filed a Notice of Appeal/Petition to the Torture Claims Appeal Board (“the TCAB”) on 30 March 2016. The Adjudicator heard the appeal/petition without the additional information on all applicable grounds, including BOR 2, and rejected the appeal and confirmed the Director’s decision on 27 May 2017.
6. The basis of the Applicant’s case is that he harbours a fear if he is returned to Pakistan, he will be seriously harmed or even killed by his uncle due to disputes regarding a plot of family land.
Background
7. The Applicant’s case is clearly set out in the TCAB Decision. I respectfully adopt them here.
8. The Applicant was born in Rawalpindi, Punjub of Pakistan. He resided in Village Adalzi most of his life until he left the country in July/August 2013. He also briefly resided in Hazro City and Attock City at the times that he wanted to avoid the dispute with his paternal uncle, Ghous (“the Uncle”).
9. The conflict with the Uncle arose over a piece of farming land (“the Land”) which was part of the legacy of his grandfather. The Applicant’s father (“the Father”) took it that the Land was to be shared equally between the two brothers. The Uncle became disgruntled with the Father marking the boundaries of the Land. A dispute then arose as the Uncle was of the opinion that he should receive the larger share.
10. The Applicant tried to confront the Uncle but was prevented from doing so by the Father who was of the opinion that the Uncle was powerful as he was rich and was once an elected councillor of the village committee.
11. Three days later an argument broke out between the Applicant and the Uncle. In the course of this argument, the Uncle said to the Applicant that, “I will harm you, I will kill you” if he insisted that there should be equal shares of the Land divided between them (“the First Incident”).
12. About a week later, the Applicant brought some elders of the village to the Land where they were met by the Uncle and his supporters. A heated argument subsequently occurred. The parties separated and left on the verge of a fight. At about 1800 hours the same evening, the Applicant was walking on his way home when he heard a gunshot from behind (“the Second Incident”). Although he could not see who shot at him, he was sure it was the Uncle as the Uncle had no grudges against anyone else.
13. Five days after this incident, the Applicant again heard a gunshot for a second time at around the same place (“the Third Incident”). It was about 2100 to 2130 and he was again on his way home.
14. Subsequently after the three incidents (“the Incidents”), the Father advised the Applicant to leave the village. He did so and it was then he went to Hazro City which was about 20 minutes’ drive away by public transport. The Applicant went to Hazro City every morning and returned to his village every night every day.
15. Twenty days later the Applicant moved to Attock City and stayed there with a friend. Attock City is a 45 minute ride away from the Applicant’s home village. There he stayed for longer intervals of 4-5 days before returning home.
16. Upon the advice of another friend, the Applicant was told that he should seek asylum in Hong Kong as his life was in danger. He left Pakistan and entered China with a valid passport and made his way to Hong Kong through illegal means on 25 of October 2013. He was arrested the same day.
17. The Applicant did not seek assistance or protection from state authority in Pakistan because they were corrupt and he could not afford to pay the bribe. The Uncle, however could afford to pay what they want.
18. The Applicant stated that relocation would not work as he had no resources to settle down in any other part of Pakistan.
19. At the TCAB hearing, the Applicant provided additional evidence and informed the Adjudicator that he had learnt from the Father that the Uncle had beaten up his younger brother. This incident occurred shortly after his screening interview.[4] After this incident, his family had left home and hidden in another city. This was unknown to the Uncle.
Immigration History
20. On 25 October 2013 he left Pakistan for Guangzhou. He entered China with a visa. He was arrested for entering Hong Kong without the permission of the Director of Immigration on 27 October 2013.
Leave to apply for judicial review against the Director’s Decision
21. The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB. As a result, judicial review of the decision of the Director is not an option open to him.
22. However, for the sake of completeness, I mention that I cannot find that the Director has erred in his application of the legal principles. He provided a thorough and detailed analysis of the evidence. The Director did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. There was no error of law, no procedural impropriety or a failure to adhere to a high standard of fairness. None of the grounds are reasonably arguable nor do they have any realistic prospects of success.
Adjudicator’s Decision
23. The Applicant was not legally represented at the TCAB hearing but gave evidence to supplement the information given by him in his NRC form and at his screening interview.
24. His NRC was considered on all applicable grounds by the Adjudicator under the USM. The Adjudicator in turn determined the following issues when assessing the Applicants NRC:
25. The Adjudicator found inconsistencies and implausibility’s in the Applicant’s evidence. Generally, she found against the Applicant on credibility and did not find the Applicant’s account of events believable. On this she highlighted two areas, the details of registration of the Land and the Three Incidents.
26. Regarding the Land, the Adjudicator concluded that the evidence placed before her was conflicting and inconsistent and found that Applicant’s explanations far from frank. Accordingly, she found his explanations as to why the inconsistencies occurred to be unacceptable.
27. On the Three Incidents, once again the Adjudicator found the allegations advanced to be implausible and made less credible by some of the Applicants evidence. The fact that no report was made to the Police, and was even tried to be made by the Applicant casts doubt. Further, the Applicant was not aware of, nor was it made known to him by his Uncle, who exactly was behind the shootings, and no demand was specifically made in this regard. The Adjudicator found these accounts to be mere speculation on the Applicant’s behalf.
28. The Adjudicator also found that any threat imposed by the Uncle should have subsided on the development that the Father and family had fled from home making it more unlikely that the threat would be pursued.
Grounds of review
29. The Applicant’s written submissions are jumbled, inarticulate and confusing. Having said that, I take into account that the Applicant is not legally represented in this application and English is not his mother language.
30. It would appear from the Applicant’s Form 86 and supporting affirmation[5], that he seeks judicial review on the grounds that the Adjudicator’s Decision was: 1) procedurally unfair and 2) erred in law. I have set out what I see are the grounds in support of his application.
Procedurally unfair
31. The Applicant submitted that Adjudicator’s Decision is procedurally unfair as:
1. she failed to carry out sufficient research and inquiry into the country of origin (“the COI”) conditions and as a result, the Adjudicator could not have arrived at a fair decision in dismissing the NRC;
2. she failed to take into account and place sufficient weight on highly relevant COI information, instead the Adjudicator took into account and put full weight on COI information that was of little or no relevance;
3. she did not check COI information relating to the political party of which the Uncle is a member;
4. the Applicant had no chance to submit any further evidence in support of his BOR 2 claim as he did not receive the letter of request from the Director of Immigration.
Error in law
32. The Applicant advances that the Adjudicator erred in law in that:
i. the Adjudicator misdirected herself on the law by failing to consider and assess whether state protection existed;
Legal principles
33. The legal principles are well settled. The court in judicial review is only to look at the legality of the underlying decision but not its merits. Judicial review is also not a further or alternative appeal procedure. In the context of judicial review of a decision the court in the exercise of its supervisory jurisdiction is to examine whether the Adjudicator in dismissing the Applicant’s claim:
(a) committed any error of law;
(b) handled the claim without compliance with the high standard of fairness as required by the law; and
(c) the substantive decision satisfied the enhanced Wednesbury test.
Discussion
34. I find none of the grounds advanced to have any reasonable prospects of success. I shall set out the reasons below.
35. It is abundantly clear from the Adjudicator’s Decision that the decision turned on credibility and the Adjudicator found against the Applicant in this regard. The Adjudicator set out in detail the reasons why she did not believe him.
Procedurally unfair – COI
36. The Adjudicator has attained the necessary inquiry and research and has adequately considered the COI. She has provided the COI information and listed the relevant information pertaining to the Applicant’s assertions (see paras 28-35). It is clear that she has scrutinized what she considered relevant to this case.
Political party ties of the Uncle
37. Finally, on the COI arguments, the Applicant contends that the Adjudicator did not check COI information relating to the political party of which his Uncle is a member. The Applicant claimed that the Uncle was part of the Pakistan Tehreek-e-Insaf party (“the PTI”).
38. There is no basis for this assertion. It is clear that the COI information in relation to the Uncle’s political party is of little if any relevance due to lack of evidence there was involvement of the PTI in the dispute or in relation to the Three Incidents. On this, the Adjudicator stated:
“(The Applicant) said that the Uncle was powerful because he was a supporter of Pakistan Tehreek-e-Insaf (“PTI”). However, evidence of the Appellant, there was nothing to indicate the involvement of any PTI members in the dispute over the Land. There was insufficient connection between the Uncle being a PTI supporter and the actual involvement of PTI or its members in the Three Incidents.” [6]
Further evidence
39. The Applicant contends that he had no chance to submit any further evidence in support of his BOR 2 claim as he did not receive the letter from the Director.
40. The hearing before the TCAB was a re-hearing of the claim. Even if it were correct that the Applicant did not receive the letter of request in support of his BOR 2 claim as he alleges, the Applicant’s BOR 2 Risk was assessed by the Adjudicator. In her reasons, The Adjudicator stated:
“The Appellant said that there was a verbal threat to kill him with the two shooting incidents. I have already made a finding that he failed to prove his case, therefore I do not accept that there is a risk that he would be arbitrarily deprived of his life. Further there is no evidence produced to show that the Appellant would face a situation of sentence to death or crime of genocide, his claim under this ground is rejected.” [7]
State protection
41. The Adjudicator did indeed consider and assess state protection in her consideration of the COI and clearly rejected the assertions.[8] She concluded that, “state protection is ready and available had the Appellant resorted to it before leaving the country or upon his return to Pakistan.”[9] There is no error in law in this regard.
Conclusion
42. I am unable to find any error in the procedure or in the law in the findings of the Adjudicator. The Adjudicator has clearly considered this case carefully and advanced her reasons in considerable detail setting out and correctly applying the relevant legal principles. She has exercised a high standard of fairness in his assessment. Further, the decision satisfies the Wednesbury test.
43. None of the grounds show any errors of law. There was no evidence of procedural unfairness not a failure to adhere to a high standard of fairness. The Adjudicator’s decision did satisfy the enhanced Wednesbury test, it was not Wednesbury unreasonable. None of the grounds are reasonably arguable and there is no realistic prospect of success.
44. I refuse the application for judicial review.
Dated 28th day of March 2018
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(Gallio Li) |
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for Registrar, High Court |
Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of the application in the light of the respondent’s evidence.
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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Sent / Handed to the applicant / the applicant’s solicitors on 28/03/2018:
Khan Muhammad Tanveer
The Applicant, in person |
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Sent / Handed to the respondent / the respondent’s solicitors / such interested parties as may be directed by the Court / the interested parties’ solicitors on 28/03/2018 :
Torture Claims Appeal Board,
(Putative Respondent)
Putative Respondent’s ref. no. USM3388/16/3/193/P893
Director of Immigration,
(Putative Interested Party)
Putative Interested Party’s ref.no.:
QAT/C 1254/15(formerly RBCZ763/14)(T7S69)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
(a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
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(b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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(c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Form CALL-1
[1] Ms Chan Ling-ling Tracy, Member of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office
[2] Conducted by a Senior Immigration Officer
[3] On 3rd March 2014
[4] That is shortly after 7 January 2016
[5] Dated 23 June 2017
[6] At para 36
[7] At para 56
[8] See paras 28-35
[9] Para 35
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