KIANI ZAFARAN ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 300/2017

[2018] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 300 OF 2017

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

Following:

Leave to apply for Judicial Review refused.

Observations for the applicant:

Introduction

1.  This is an application by the applicant for leave to apply for judicial review, seeking relief to quash the decisions of the Director of Immigration (“the Director”) dated 6 February 2015 and the decision of the adjudicator[1] (“the adjudicator”) of the Torture Claims Appeal Board (TCAB) dated 8 June 2017.  

2.  The basis of the applicant’s claim is that he fears he will harmed or even killed by members of the political party known as the Pakistan Muslim League (Nawaz) (“the PMLN”) if he is returned to Pakistan.  The reason was that he was a Pakistan Muslim League (Quaid e Azam Group) (PML-Q) supporter and he attended rallies and assisted in putting up posters and encouraged people to vote for the PML-Q. 

Background

3.  The applicant is a Pakistani national.  The applicant left Pakistan for China on 7 October 2009 and entered Hong Kong via Shenzhen illegally by boat on 21 October 2009.  He was arrested for remaining illegally in Hong Kong on 21 October 2009.  On 22 October 2009, he was transferred to the Immigration Department for investigation. 

4.  On 23 October 2009, the applicant raised a torture claim and was released on recognizance on 9 November 2009.  He lodged a non-refoulement torture claim form through his legal representatives on 15 December 2014.

5.  The applicant attended a screening interview with his legal representatives on 4 February 2015.  The Director dismissed the claim in a decision handed down on 6 February 2015. 

6.  The applicant appealed the Director’s decision via a Notice of Appeal/Petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) on 16 February 2015. 

7.  A hearing of the appeal was held on 20 November 2015 by the adjudicator, where the applicant was acting in person.  The adjudicator rejected the claim and on 8 June 2017 he confirmed the Director’s decision.

8.  The applicant filed a Notice of application for leave to apply for judicial review via Form 86 on 16 June 2017.

Relevant factual basis for the applicant’s claim

9.  The applicant was born in Bohrain Duleyal, Jhelum, Lahore in Pakistan in 1982.  In 2006 he commenced work as a welder in Pakistan and worked for a man named Rafiq Hussain (“his Boss”).

10.  In 2006, the applicant became a supporter of PMLQ due to the influence of his Boss.  The party office of PMLQ was located at his Boss’ welding shop (“the Shop”), which was also the applicant’s place of work.  Although he was not an official member, he attended rallies and assisted in erecting posters and also encouraged people to vote for the PMLQ in the general election in 2008.

11.  The applicant highlighted a number of incidents upon which his claim relies on.  The first incident occurred at the end of 2008 during the Nazim election in Jhelum where the applicant claimed that he and 15 other PMLQ supporters were attacked by 30 PMLN supporters armed with wooden sticks and iron rods.  The PMLN supporters warned them not to vote for the PMLQ candidate. 

12.  As a result of the attack, the applicant said his back was painful and his head and arms were bleeding.  His wounds were treated at a private medical clinic and he stayed at the Shop for the night before he returned to his home the following day.  He stayed there as he was afraid that the PMLN supporters would look for him at his home.

13.  The applicant claimed it took one month to recover from his injuries. He worked at the Shop during this time.  He did not report the assault to the police because the PMLN is politically stronger and more influential than the PMLQ.  Also, the members of the PMLN told him that their party had a good relationship with the police.

14.  The second incident occurred 20-25 days after the first.  The applicant claimed that 10 PMLN supporters came to the Shop where he was working with 3 colleagues at the time.  The colleagues were also PMLQ supporters.  The PMLN supporters beat them all up with wooden sticks and iron rods.  They gave further warning against soliciting votes for the opposing party.  The applicant once again sustained injuries to his back and sought treatment at the same clinic.  For the same reasons, he did not report the matter to the police.

15.  The third incident occurred in around June 2009 at 11am.  This time, 5 PMLN supporters came to see the applicant and his Boss near the Shop.  The assailants said that they had come to punish them as the PMLN had won the election as a result of not listening to the warnings not to support the PMLN candidate.  They again attacked them with wooden sticks and iron rods.  The applicant was hit on his right ankle and his face.  This resulted in a broken right ankle and an injury to his face which required 5-6 stitches.  He became unconscious as a result of the assault.  He was hospitalised for 3-4 days.  The applicant claimed it took him many months to recover from these injuries.

16.  The applicant was told by his colleagues that his Boss had closed the Shop after one month and that he was unable to contact him after the attack. 

17.  The applicant was afraid of the PMLN so left his village in July 2009. He moved to Lahore which was 30-40 kilometres away.  He contacted his family from time to time and was told that the PMLN people came to look for him 2-3 times threatening to kill him.

18.  In September 2009, the applicant claimed he saw 3-4 PMLN supporters who were amongst those who had assaulted him eating at a Bazaar on Dada Road in Lahore.  They did not see him but he thought they were looking for him.  As a result, he then decided to leave Pakistan for China.  He claimed that relocation in Pakistan was not a viable option because he believed that the PMLN would still be able to locate him. 

19.  The applicant claimed that after he came to Hong Kong, his family told him that the PMLN people were still looking for him.  His friends also told him that they were making enquiries of his whereabouts and asking when he would be returning to Pakistan. 

Decision of Director and the adjudicator

20.  The Director conducted an interview on 4 February 2015 where the applicant was legally represented by the Duty Lawyer Service.

21.  In a detailed assessment of the claim, the Director considered the applicant’s non-refoulement claim in all the applicable grounds including torture risk, BOR 3 risk and persecution risk.

22.  The Director considered an extensive list of relevant country of origin information (“COI”) along with medical documents and concluded that the applicant failed to substantiate his claim.

23.  An oral hearing was held to determine an appeal/petition before an adjudicator on 20 November 2015.  The applicant appeared in person.

24.  Turning to the TCAB decision, in her reasons, the adjudicator set out clearly the applicable law and definitions, relevant COI, as well as the correct burden and standards of proof and applied these to the relevant facts.

25.  In essence, the applicant’s claim failed on credibility and the adjudicator rejected his account of his experiences.[2] The adjudicator found the evidence full of inconsistencies[3] and subsequently rendered the claim implausible and unreliable.  There were numerous inconsistencies between the applicant’s written answers in his non-refoulement claim form (“NCR”), the Notice of Appeal and his oral evidence that undermined his credibility. 

26.  Added to this, his oral evidence did not clarify the situation or shed any light on the discrepancies.  The adjudicator noted that from the applicant’s evidence, it was not clear, and seems that the applicant himself was not even sure, which party he was supporting. 

27.  Further, there were numerous changes to his original version of events that did not seem plausible.  These were listed by the adjudicator in paragraphs 15-24 of her decision.  As a consequence, the adjudicator found the nature of the applicant’s evidence was of such a level of unreliability that she he was unable to discharge his burden of proof. 

28.  Turning to the assessment of the torture risk, the adjudicator found that the applicant’s risk of torture if he were to be refouled was low.  The alleged injuries did not satisfy severe and the attacks were not done with the consent or the acquiescence of a public official or public authority. 

29.  In assessment of the BOR 3, the applicant failed on credibility.  The adjudicator did not accept that the applicant faces a real risk of being tortured or cruel, and inhuman or degrading treatment or punishment by PMLN supporters if he is refouled.  The applicant failed to establish any ill-treatment on his return would be severe, or that he faces a substantial risk of being ill-treated or tortured. 

30.  In assessment of the persecution risk, the adjudicator concluded that the applicants’ fear was not well-founded persecution risk had not been established.  The applicant failed to discharge his burden of proof due to, mainly inconsistencies in his evidence. 

31.  In assessment of the BOR 2 risk, the adjudicator found that the applicant had failed to provide any additional evidence or information to establish his case under BOR 2.  The applicant failed to show he has a real risk or danger against his life should he be refouled. 

32.  After assessment of the country of origin information (“the COI”), in consideration of state protection, the adjudicator found the applicant’s assertions to be based on hearsay and unreliable.[4]

33.  Whilst the adjudicator conceded that there is a lack of distrust in the police force in Pakistan[5], she concluded that there are sufficient safeguards established by the State in the case of the applicant[6].

34.  Further, in consideration of internal relocation, the adjudicator concluded that in summary, there were available viable alternatives for the applicant. The applicant admitted that he had stayed in Lahore for 3 months before he left for China in October 2009 and did not encounter any trouble with members of the PMLN even when he encountered them at Dada Bazaar.[7]

35.  Citing specific COI materials, the adjudicator found that Pakistan allows freedom of movement within the country enabling the applicant free to locate to another city of his choice in Pakistan should he wish to do so. 

Grounds Relied upon by the applicant

36.  The applicant’s Form 86 and attached affirmation do not contain any grounds for seeking relief.  As a result, I shall consider the matter within the general legal principles.

Legal Principles

37.  In an application for judicial review, it is the role of the court to examine whether, in handing down the decisions, there has been an error in law in its decision or handled the claim without compliance with the high standards of fairness as required by law as explained in Secretary for Security v Sakthevel Prabakar (2004) & HKCFAR 187.  This is not an opportunity for further appeal on the matter. 

38.  The court is also required to consider whether the substantive decision satisfied the Wednesbury test of reasonableness AM v Director of Immigration & anor [2014] 1 HKC 416, 430.

39.  The high standard of fairness required by decision makers is dependent on the circumstances of each case.  The standard ultimately comes down to common sense and fairness TK v Jenkins & Anor [2013] 1 HKC 526. 

40.  The test for determining whether leave to apply should be given is whether there is reasonable arguability Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, para 15.

Discussion and Consideration

41.  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.  Consequently, I turn my focus on merits of the application regarding the adjudicator’s decision. 

42.  For the sake of completeness, having read through the Director’s decision I do not find any error of law or procedure.  Further, I fail to see that the decision has not adhered to a high standard of fairness and is not Wednesbury unreasonable.  I am not satisfied that a review of the decision is reasonably arguable with any realistic prospects for success. 

43.  Turning to the decision of the adjudicator, she has provided detailed reasons for the decision in rejecting the applicant’s claim.  She has made it very clear that credibility is the central issue.  She also listed in detail as to why she came to the conclusion on this at paragraphs 42-44.  Further, at paragraph 43 she cited authority in support of her finding on this.[8]

44.  The adjudicator clearly regarded that the inconsistencies rendered the Appellant’s account implausible and unreliable and were of a significant consequence to his credibility. 

45.  To conclude, in the adjudicator’s findings and her assessment of the applicant’s claim, there is no error of law and no evidence to suggest a failure to comply with the high standard of fairness as governed by Prabakar.  Further, the Decision has satisfied Wednesbury reasonableness and has no reasonable prospect of success.

46.  The applicant’s application for judicial review is consequently refused.

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

[1] Ms Wong Hing-chun, Member of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office

[2] See paras 42-44

[3] As set out in para 42

[4] See para 55

[5] See para 56

[6] See para 59

[7] See para 60

[8] MA (Somalia) v SSHD (2010) UKSC 49 per Lord Dyson at paragraph 33