MEHMOOD ABID v. P.K.M. LONGLEY, Esq

HCAL 220/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 220 OF 2015

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J U D G M E N T

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The application

1.  The Director of Immigration (“the Director”) refused the applicant’s non-refoulement claim.  His appeal to the Torture Claims Appeal Board (“TCAB”) was dismissed.  He now seeks leave to apply for judicial review of the decision of the TCAB.

2.  The applicant’s torture claim was based on:

(i)   Torture risk under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

(ii)   Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 risk”); and

(iii)   Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

3.  The applicant has, by letter dated 29 June 2016 after the hearing, confirmed that there was only one decision made on 4 November 2015 (ie TCAB’s Decision) that he intends to seek judicial review of. 

Factual Background

4.  The applicant was a citizen of Pakistan, born on 1 May 1983.  He is single and is one of 3 children of his parents.  He came from a village called Mominpar in Attock District. His first language is Punjabi but he also speaks Urdu and a little English.

5.  From 2003 to 2007, the applicant worked as a helper and medical student in a clinic in Hazro. 

6.  The applicant was robbed by a person in December 2007 whom he could identify as Shafqat.  Shafqat said he would “deal with” the applicant, which the latter understood to be a threat to kill him.  As the applicant fled into the fields, shots were fired at him.  He managed to reach home and the robbers did not pursue him.

7.  The applicant tried to report to the police station in the morning following the robbery but when he arrived he saw Shafqat standing with a few other men outside the police station.  Fearing for his life the applicant returned home before Shafqat had seen him, without making a report.

8.  On his mother’s advice, the applicant left home on the same day.  He stayed with an aunt for 4 weeks in Rawalpindi city, about 50 km from home, and nothing happened to him during that period.  He heard that that Shafqat had come to his home and clinic a few times looking for him, allegedly saying that he would not spare the applicant.

9.  In January 2008, having discussed with his family, the applicant decided that it would not be safe in Pakistan as he could not spend his life hiding in his aunt’s flat.

10.  The applicant was issued with a Pakistan passport back on 23 November 2007 and a China Catgory F (Business) visa in Islamabad on 15 January 2008.  He left Pakistan on 25 January 2008 by air to Guangzhou.  He went to Shenzhen and stayed for 5 days.  He learnt from someone he met there that Hong Kong was safer than Mainland China and he entered Hong Kong illegally by boat on 1 February 2008.

11.  He made no application to the UNHCR.  He was arrested by the police about a year later on 24 March 2009.  He lodged his non-refoulement claim 2 days later.  He was released on recognizance on 31 March 2009.

12.  His claim was based on his fear that if he was to be returned to Pakistan, he would be harmed or even killed by Shafqat. After coming to Hong Kong, he learnt from his family that Shafqat had come to his home looking for him, the last occasion being 2010.  He claims that Shafqat was politically well connected and has connections beyond the applicant’s home village.  The authorities in Pakistan were corrupt and that they would not offer him protection.

Decision of the Director of Immigration

13.  The Director rejected the claim as unsubstantiated.

Decision of the TCAB

14.  The decision of the TCAB was reached after the Adjudicator has heard the applicant’s oral evidence and considered written materials.  The Adjudicator directed himself on the law, the burden and standard of proof in paragraphs 16-25 of his Decision.  He found the applicant not to be a reliable witness and on that ground alone disposed of the appeal.

15.  However, the Adjudicator also stated that even if reliance could be placed on the applicant’s evidence, he would not have found that the latter has made out a case for non-refoulement protection and, in particular, that he faced any genuine, substantial or real risk of suffering the hardship that he claims to fear. 

16.  Specifically the Adjudicator found that there was no proof of Shafqat’s connection to the police and political figures.  His suggestion that the police would not take action against Shafqat was, taken at its highest, based on local hearsay.  He himself stated that the police came to his village to look for Shafqat after the robbery of a money exchanger and that the police raided him for a few times but did not find him.  His own behaviour in cycling to the police station to make a report that he had been robbed by Shafqat appeared to be inconsistent with a belief that the police would not take action against Shafqat. 

17.  The Adjudicator was not satisfied that even if Shafqat (a local gangster and common criminal) had any local influence, that influence extended elsewhere in Pakistan particularly if, as the applicant alleged, Shafqat’s political allegiance shifted with whatever party was in power.

18.  The applicant admitted to the Adjudicator that he had not demonstrated that he could not obtain protection from the police or other authorities in Pakistan.  He had no proof of Shafqat’s connection to the police.

19.  Even if the applicant had doubts about the unwillingness of the police in Ghurghushti to protect, there were other avenues open to him as shown in his answers in the interview with the Senior Immigration Officer.

20.  In his Non-refoulement Claim Form the applicant stated that he had heard that Shafqat had come to his home and to the clinic looking for him in December 2007.  In his interview, he thought that Shafqat had come looking for him at the clinic 2-3 times after December 2007.  He claimed that he had heard that Shafqat’s visits to his home had decreased from once a week to once a month and then decreased even further.  He admitted not having spoken to his family, the employer or anyone else about Shafqat since 2010.

21.  Bearing in mind the lapse of 7 years, the Adjudicator considered that even if Shafqat had once been a threat to the applicant there would now be no real possibility that he or his associates would seek to harm the applicant, particularly if he did not return to his home area. 

22.  The Adjudicator took the view that the Applicant could live safely in Pakistan if he was to return there.  He could live in cities like Karachi or Lahore (where the applicant feared only about the general safety of living there but not fear of Shafqat) and Rawalpindi (where his aunt was).

Grounds for seeking leave to apply for judicial review

23.  There was no challenge to the Adjudicator’s findings of fact. The applicant has advanced 8 grounds in his Form 86 but made no submission despite requesting for an oral hearing before the court.

Legal principles

24.  The burden is on the applicant to show that the grounds advanced are arguable: Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.

25.  The court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review. The standard of review is that of “rigorous examination and anxious scrutiny”: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45; TK v Jenkins & anor [2013] 1HKC 526, §40.

Analyses of the grounds for the intended judicial review

26.  Grounds 1 and 2 on procedural impropriety or unfairness and irrationality are related.  It is said that the Adjudicator has failed to carry out research and inquiry into up-to-date Country of Origin Information (“COI”), cherry picking and placing weight on COI of little or no relevance.

27.  The Adjudicator considered a number of documents on COI and other materials, in particular, those in paragraph 15(f) of his Decision.  The applicant has not identified what the up-to-date COI that the Adjudicator could have consulted and how they would have affected his Decision. These grounds are not substantiated.

28.  Ground 3claims that the Adjudicator failed to evaluate and make a finding of fact as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of CAT; and so his decision was unreasonable.

29.  According to ST v Betty Kwan & anor [2013] 3 HKC 87, Court of Appeal, §37(2):

“The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

30.  The Adjudicator has found against the applicant on credibility and so there was no case of the applicant being personally at risk of torture, cruel and inhuman treatment.  There was thus no duty on the Adjudicator to go further to ascertain the pattern of violation of human rights.  Ground 3 must fail.

31.  Ground 4claims that the Adjudicator failed to analyze and assess whether state protection exists in Pakistan under the extended meaning, namely, whether the state had exercised due diligence or sufficient due diligence.  The Adjudicator was said to have misdirected himself on the law erroneously stating what the extended meaning of state protection was.

32.  For the same reasons given in paragraph 30, I find Ground 4 to be untenable.  

33.  Ground 5is that the Adjudicator took into account irrelevant considerations or considerations that were incorrect, not based on facts and failed to take into account facts and inferences favourable to the applicant.  The Decision arrived at was thus unreasonable.

34.  This ground contains no particulars and is unsubstantiated.

35.  Ground 6 is alleged procedural impropriety in failing to call for psychological and psychiatric evaluations and reports at any stage of screening or in the appeal.

36.  The applicant did not allege that he suffered any harm (physical, psychological, psychiatric or otherwise) in the robbery, before or after his non-refoulement claim was made.  Ground 6 has no merits.

37.  Ground 7:The Adjudicator applied the incorrect standard of proof in his Decision.

38.  I have examined all the references to standard of proof in paragraphs 16-25 of the TCAB’s Decision.   They were all in accordance with established authorities on torture risk: TK v Jenkins, §§17-20 onBOR 3 risk: ST v Betty Kwan, at §§ 34-37 and Luu The Truong v Chairman of the Refugee Status Review Board & anor [2003] 2 HKLRD 351, at §56 on persecution risk.

39.  Ground 8: Procedural impropriety or unfairness in that the failures of the duty lawyer resulted in a lack of or insufficient legal representation for the applicant and he was not afforded a fair procedure.

40.  Again, no particulars have been given of the alleged failures of the duty lawyer and how legal representation was insufficient.  This ground is unsubstantiated.

Other grounds

41.  Page 12 of Form 86 also refers to some Grounds of Review (“the other grounds”) that, in turn, referred to an Appeal Decision dated “14 October 2015”.  In points 1-3 of the other grounds, the applicant quoted some passages from a decision, which was not the subject matter of this leave application.

42.  The applicant has since confirmed by the letter dated 29 June 2016 after the hearing that he was really referring to the date of 4 November 2015.  He claims that the Adjudicator “says the same thing maybe not exactly the same but the meaning is same.”

43.  Even so, the TCAB’s Decision did not contain passages in anyway close to what were quoted.  I therefore disregarded the other grounds.

Conclusion

44.  None of the grounds advanced for judicial review could meet the threshold in Peter Chan Po Fun.  I therefore decline to grant leave for applying for judicial review.