RAHMAN ABDUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 746/2017

[2018] HKCFI 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 746 OF 2017

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Leave to apply for Judicial review refused.

Observations for the applicant:

Introduction

1.   The Applicant is a Pakistani national.  This is an application by the Applicant for leave to apply for judicial review seeking relief against the decisions of the Director of Immigration (“the Director”) dated 9 June 2015 and 30 August 2017[1] and the decision of the Adjudicator[2] of the Torture Claims Appeal Board (“the Adjudicator”) dated 13 September 2017.

2.   The basis of the Applicant’s claim is that he fears being harmed or killed by the Mangal Bagh group (“MB Group”) of the Taliban as a result of his refusal to close his shop selling CDs and DVDs and to join them in their fight against the Pakistani Army. 

Procedural Background

3.   The Applicant departed Pakistan for Mainland China on 25 November 2009 and entered Hong Kong illegally on 8 December 2009.  He was arrested by police on the day he entered for remaining in Hong Kong illegally and was referred to the Immigration Department on 10 December 2009. 

4.   The Applicant sought non-refoulement protection on 11 December 2009 and was released on recognizance on 18 January 2010.  As the screening process of his claim under the Convention was not completed before the commencement of the Unified Screening Mechanism (“USM”) his claim was taken to be a claim for non-refoulement under the USM. 

5.   He completed a Non-refoulement Claim Form (“NCF”) with supporting documents on 2 March 2015 and was interviewed on 4 May 2015.  He was legally represented by the Duty Lawyer Service (“the DLS”) at this time. 

6.   The Applicant’s claim was rejected by letter dated 9 June 2015.  He lodged an appeal/petition against this decision on 23 June 2015.  A hearing was held to hear the Applicant’s appeal/petition on 22 July 2016.  Again, the Applicant was legally represented by the DLS.[3]

7.   By letter of 22 May 2017, the Applicant was informed that it was proposed to give further consideration to his claim under the provisions of BOR 2.  The Applicant was invited to submit further information in support of the BOR 2 aspect (“Further Decision”).  The Applicant submitted a newspaper article through the DLS on 5 June 2017 and requested an additional 3 weeks to submit further relevant information in this regard.  The request was granted, however nothing further was submitted and the case was assessed on all available information.

8.   The application under BOR 2 provisions was refused by the Director via letter dated 30 August 2017 (“Notice of Further Decision”).

9.   The Adjudicator considered the Applicants case under BOR 2 without a further hearing.  On 13 September 2017, the Adjudicator rejected the application and confirmed the Director’s Further Decision and Notice of Further Decision[4].

10.   The Applicant filed an application for leave for judicial review via a Form 86 with supporting affirmation on 10 October 2017. 

Grounds of Application for Leave

11.   The basis of the application is that the Applicant is not satisfied with the decisions made by both the Director and the Adjudicator regarding the threats he received from the Taliban as:

(1) the Taliban has a stronghold in Pakistan and Afghanistan.  They are in all Pakistan cities and in the mountains along the Pakistan/Afghanistan borders; and

(2) the Director has failed to understand the basis of the (his) fear and vulnerability that the Pakistan government will not protect him as the government has failed to eliminate extremist groups. 

Factual basis for the Applicant’s claim

12.   The Applicant is single and neither he nor his family had any political affiliations in Pakistan.  In 2006 or 2007 the Applicant opened a shop in Peshwar City (“the Shop”).  He rented the Shop and sold CDs, DVDs, mobile phones, cameras and other electronic accessories. 

The First Incident

13.   In early 2009, the Applicant received a letter from the MB Group.  The letter contained a warning that the Applicant selling CDs and DVDs was prohibited by Islam and it demanded that he close the Shop and join the MB Group in their fight against the Pakistani Army.  The letter warned that if he did not do so, the Applicant would be killed.

14.   The Applicant ignored the threats as he did not expect that the Taliban would carry them out.  The Applicant showed his mother the letter and she told him to continue working in the Shop. 

The 2^nd Incident

15.   About 2-3 weeks later, the Applicant claims that 2 men, who he did not know, came to the Shop and told him that since he had ignored the letter, they had come to give him a final warning. The Applicant stated that some of his neighbours told him that they had seen other men with weapons in a car outside the Shop. 

16.   The Applicant did not report the matter to the police because he thought that the police would suspect that he had some association with the Taliban. 

The 3^rd Incident

17.   About a month after the 2^nd incident, the Applicant was returning from dinner with a friend at around 9-10pm.  He found that there had been an explosion in the Shop.  The Applicant could not recall the date or month of the explosion only that judging by the damage, it has been caused by a small bomb.

18.   The Applicant says that he saw the owner of the Shop (“Alam”) at the scene and Alam told him that the Shop had been damaged by an explosion.  The Applicant stated that the police at the scene heard what Alam had said and approached the Applicant to ask who the owner of the Shop was.  The Applicant gave Alam’s name and explained to the police that he was a tenant of the Shop. 

19.   The Applicant did not mention to the police that he had been warned or threatened by the Taliban as they would think that he was associated with the Taliban and that he would be arrested, interrogated and possibly tortured. 

20.   The day after the explosion, Alam contacted the Applicant and asked him to come to collect the undamaged property from the Shop.  The Applicant did not return to the Shop as if he had done so, the police would have asked him about why the Shop had been bombed.  The Applicant was afraid that the police would torture him and demand money from his family if he had returned to the Shop.

21.   About 2-3 days later, the Applicant decided to leave Pakistan.  He went to Afghanistan where he worked in a pharmacy in Kabul as a cleaner.  After he had been in Kabul for 2-3 months, he called his brother in Pakistan.

22.   The Applicant’s brother (“his brother”) told him that Alam had said that the police visited the Shop and asked about the Applicant.  Alam had told them that the Applicant had gone to Afghanistan.  His brother also told him that the police had been to the Applicant’s home to look for him on six to seven occasions and that the police told his brother that they strongly suspected that the Applicant had gone to Afghanistan to join the Taliban. 

23.   In July or August 2009, the Applicant returned to his family home in Peshwar.  His family informed him that the Taliban had gone to the Shop once looking for the Applicant.

24.   Further, the Applicant stated that one of his brothers had been killed in or around 2006 or 2008 in a planned bomb explosion. 

25.   The Applicant decided to leave Pakistan and on 25 November 2009, the Applicant commenced travel overland to China in order to start a new life.  In China, he met another Pakistani person who informed him that it was possible to make a claim under the Convention against torture and a refugee claim in Hong Kong.  He therefore entered Hong Kong illegally soon afterwards.

Director’s Decisions

26.   In his detailed findings, the Director carefully considered and assessed the Applicant’s claim under all applicable grounds including torture risk, BOR 3 risk and persecution risk along with additional documents submitted by the Applicant.  Additionally, careful consideration was given to the BOR 2 risk along with additional materials and documents submitted by the Applicant. 

27.   The Director considered all evidence.  His findings were clear and detailed.  He correctly set out the relevant law, applied the correct and relevant principles with reference to all relevant materials. 

28.   The Director found that the Applicant had failed to meet the required threshold under all of the relevant headings and consequently refused the Applicant’s claim for non-refoulement. 

Adjudicator’s Decision

29.   The Adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The Applicant elected to give evidence. 

30.   The Applicant’s claim was assessed under all applicable headings including persecution risk, BOR 3 risk, BOR 2 risk and torture risk.  In a detailed finding, the Applicant’s claim failed under all of the applicable headings.

31.   Having carefully considered the Applicant’s case.  The Adjudicator set out the Applicant’s evidence and his analysis of it.  He concluded that the evidence as a whole was far-fetched, inherently incredible, completely speculative and unreasonable[5]. Further, the Adjudicator found that the core basis of the claim was based on hearsay, double hearsay and even 3^rd-hand information[6] consequently, he did not attach any weight to any assertions of fact and evidence put forward by the Applicant.[7]

32.   Additionally, the Adjudicator found that there were variations in the Applicants oral evidence and that which he stated in the NCF[8]. Photographic, medical and other documentary evidence submitted by the Applicant did not support the claim and the Adjudicator found this too impacted on the Applicant’s general credibility.[9]

DISCUSSION AND CONSIDERATION

33.   The Applicant complains that the decision makers have failed to understand the extent the impact of the Taliban in Pakistan.  His further complaint states that there has been a failure to understand the Applicant’s fear and vulnerability that the Pakistan government will not provide protection to him since the government has failed to eliminate the Taliban.  

34.   The Director and the Adjudicator both considered the Taliban and its strong hold.  The Adjudicator stated there was ample information in Country of Origin Information (“COI”) reports and news reports accessible online that supported the Applicant’s assertion and consequently recognized that the MB Group was strong in the Khyber Agency and to a lesser extent, in Peshawar[10][11]. The Director carefully considered the Pakistani Government’s provision to protect its citizens.  There is no substance in this ground. 

35.   The Adjudicator at the rehearing found that the Applicant’s claim failed on credibility and his accounts were therefore untruthful.  Not finding him to be a genuine torture claimant he dismissed his claim.  This is a finding that a decision maker is entitled to make based on the evaluation of the evidence that is available to him, there is no basis upon which to interfere with those findings.

36.   For judicial review applications, the court concerns itself with the reasonableness, lawfulness and fairness of the decisions against which relief is claimed.  It is not an avenue for reassessment of the evidence.  High standards of fairness must be attained and the court must consider the matter after rigorous examination and scrutiny. 

37.   After rigorous examination and scrutiny, I do not find any error of law nor evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The decisions of the Director and the Adjudicator did satisfy the enhanced Wednesbury test. They were not Wednesbury unreasonable. 

38.   The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  The application for judicial review is refused.

Dated 24^th day of July 2018

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.

Form CALL-1