RE IMTIAZ MUHAMMAD

CACV 138/2018

[2018] HKCA 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2018

(ON APPEAL FROM HCAL 462/2017)

____________________

________________

JUDGMENT

________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 30 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong illegally on 30 November 2012 and was arrested on the same day. On 15 November 2012, he lodged a torture claim. His claim is based on the threat from a gang due to a land dispute.

2.  According to the applicant, his father and uncle inherited a piece of land in the village where they lived and were farmers.  However, when the applicant was very young, the uncle was shot and killed by men working for one Peer, an influential and politically well-connected landlord in the area, when trying to resist the land being taken over and built upon by Peer and his men with a view to using the structure that was built in connection with an election.  Despite complaints to the police by the applicant’s father, nothing was done, the land remained in the occupation of Peer, and the applicant’s family received regular threats aimed at getting the murder complaint withdrawn.

3.  Some three years after his uncle’s murder, the applicant and his father were attacked with an axe, resulting in injuries requiring a lengthy stay in hospital.  After this the applicant’s family moved away, to a village about two hours distant.  Despite this, they continued to receive threats over a period of 10 years.  When the applicant and his father tried to visit their land 10 years after they had left the village they were again threatened, shots being fired.  This led the applicant’s father to send the applicant to Hong Kong.

4.  The Director decided against the claims on 23 September 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 14 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 11 April 2017, the Board dismissed the appeals on 20 July 2017 (“Board Decision”).

6.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 28 July 2017 did not contain any ground for judicial review.

7.  In his affirmation dated 28 July 2017, the applicant gave the following grounds for judicial review:

 (1) he was not given any chance to submit additional evidence for BOR 2 risk;

 (2) the Board only considered those COI which are against the applicant’s claim; and

 (3) the Board was biased and adopted a formulaic approach.

8.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [10] to [20] of the CALL-1 Form of 30 April 2018:

“10. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

11. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as both to be interested parties in his Form 86. The grounds in his affirmation appear directed at the adjudicator only except for one ground against the decision maker I assume is the Director which was that it was unfair his BOR 2 risk claim was determined without an interview or hearing.

12. In any event, I take the view 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 decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions 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 don’t arise here.

13. The grounds on the applicant’s affirmation are not so clearly or coherently set out but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with the Country of Origin (‘COI’) information. He failed to consider human rights abuses in Pakistan. He cherry picked information that resulted in an unreasonable finding against the applicant.

14. The adjudicator did consider COI information and found COI information which corroborated his submissions and assertionsbut he also found objective COI to show that reforms have been and are ongoing in Pakistan. He found State protection was available to the applicant if he was at any risk. He set out in his decision the COI references. The applicant did not claim there was a flagrant and consistent pattern of gross mass violation of human rights in Pakistan; it was not part of his case. Therefore, it was not considered by the adjudicator. There were no merits in those grounds.

15. The applicant makes a complaint that he lost the opportunity to submit information to support a BOR 2 risk claim because he never received a letter from the Immigration Department inviting him to submit additional information. He makes a complaint against the interpreter at the oral hearing misinterpreting specifically the adjudicator’s invitation to the applicant to submit additional information regarding his BOR 2 risk; this meant he therefore lost another chance to give further information. However, in paragraph 21 of the decision, the adjudicator specifically addresses the Notice of Further Decision relating to the BOR 2 risk and the applicant indicated he had nothing further to add. If he had lost two chances to submit information I doubt he would have given up a third and indicated, he had nothing to say.

16. The applicant feels aggrieved that his BOR 2 risk claim was refused without interview. The Director would have written to the applicant’s last known address and invited him to submit additional information if he wished within a specified time limit. The Director then rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in his decision dated 23 September 2015. There is no requirement for the Director to hold another interview especially where there is no additional information from the applicant. He can rely on the interviews previously conducted. In any event, BOR 2 was not relied upon by the applicant from the outset; meaning he did not put forward a claim he was at risk of harm from capital punishment inflicted by the government or faced harm from his government that would put his life at risk. He was never saying that if refouled there was a real risk of a breach of BOR 2. There was no necessity of an oral hearing. There is no merit in this ground.

17. The applicant dismisses the suggestion of relocating internally because he says the police are looking for him and it would appear that politics is now involved in his claim as well as false cases reported against him. These are not matters that were canvassed before the TCAB.

18. The applicant does appear in his affirmation to give new evidence. His brother has been injured, a family member has been shot in the leg, others have been targeted or [sic] because they refused to divulge the applicant’s whereabouts. It is unclear from the affirmation when or where these incidents have occurred. His enemies have reported him to the police and framed him for false charges therefore he is now a wanted man. In any event, it appears that these incidents were not evidence before the adjudicator of the TCAB. If not, it is not evidence I will take into account for an application of this nature.

19. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an 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. In fact, the same applies to the decision of the Director.

20. 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.”

9.  In the notice of appeal of 4 May 2018, the applicant said it was not safe for him to go back to Pakistan.

10.  The applicant agreed by a letter faxed to the court on 14 May 2018 that the appeal can be heard by two judges.

11.  In his skeleton submissions dated 27 June 2018, the applicant said that the gang which threatened him are wealthy and well-connected, and that they could torture or even kill him if he goes back to Pakistan.

12.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

13.  In this appeal, the applicant did not seek to challenge the dismissal of all the grounds for judicial review by the learned judge.  His soleground of appeal is the supposed threat to him from the gang.  At §22(iv) of the Board’s Decision, the Board held that the gang had no intention to harm or kill the applicant even when they had an opportunity to do so.  The applicant is unable to show that the Board had committed any error in making this conclusion.  There is no merit in this ground of appeal.

14.  The applicant’s case is essentially a challenge to the Board’s findings.  As this court has stated on many occasions, the primary decision makers on the facts of a claim are the Director and the Board.  A judicial review is not an opportunity to revisit those facts and seek to challenge them, but a means of ensuring that the process by which such findings are made is procedurally fair.  In the present appeal, the applicant has simply identified no procedural flaws of which complaint can be made.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.