ZAFAR IRFAN v. FRASER SYME, ESQ.

HCAL380/2017

[2018] HKCFI 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 380 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Pakistani national who claimed to have illegally entered Hong Kong on 19 October 2013 only to be arrested three days later.  On 12 March 2014 the applicant lodged a non-refoulement protection claim.  The Director of Immigration (“the Director”) rejected it on 22 July 2016 and 12 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected it on 29 June 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 10 July 2017.  The applicant requested an oral hearing and appeared in person on 1 November 2017 having had his application for legal aid refused.

3.  The basis of the applicant’s claim was that if he returned to Pakistan he would be harmed or killed by supporters of the Pakistan People’s Party (“PPP”) because he was a supporter of the Pakistan Muslim League (Q) (“PMLQ”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

4.  The applicant was born in Gujarat, Pakistan in 1990, received eight years of education and was a self-employed electrician.  He became a PMLQ supporter in 2007 but was not a member.  He helped with party meetings and rallies.  In his area, the dominant party was PPP and from time to time he was harassed by them and occasionally threatened.  This harassment escalated in October 2011.

5.  One day he was assaulted on the street by a group of five to six men armed with rifles and pistols.  He tried to run away but they caught him before he reached home.  He was beaten up and they only stopped when his family begged for mercy.  They berated him for opposing the PPP.  His family promised to send him away and the beatings ceased.  The applicant did not make a police complaint.  The applicant moved to a relative’s home nearby after about a month recuperating at home.  Those PPP supporters continue to go to his home to ask if he was still residing there.

6.  His family decided in December 2011 to send him out of the country with the assistance of his brother.  He flew to the Mainland before he went to Hong Kong nearly two years later.  He lost contact with his family in October 2015 but later made contact with them again.  They told him that his enemies were still looking for him.  The applicant said it was impossible for him to relocate to another part of Pakistan because his enemies would be able to locate him and he was unable to pay bribes to the authorities to protect him.

7.  At the appeal hearing, the applicant raised new claims.  He said that after he was beaten by the PPP supporters he was falsely accused of raping a classmate.  His family have said the police have charged him with rape.  He also said that he was denied departure at the airport twice and had to pay a bribe to the Immigration officer before he could leave.

8.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.  The adjudicator of the TCAB treated the appeal/petition as a rehearing.  The applicant had his rights explained to him with the assistance of an interpreter and he elected to answer questions.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  The adjudicator also set out the applicant’s evidence he gave in his statements as well as his oral evidence because the adjudicator pointed out inconsistencies to the applicant in order to give him an opportunity to explain them.

10.  The adjudicator found the evidence of the applicant inconsistent and implausible and found his explanations were unpersuasive.  He rejected the applicant’s evidence he was a supporter of PMLQ and rejected his evidence he was harassed, threatened or ever assaulted by supporters of the PPP.  In fact, there was credible news information that the PPP and PMLQ were coalition partners in April 2011.  The adjudicator gave full reasons for this conclusion; he gave many examples of the inconsistencies and implausible evidence that undermined the credibility of the applicant’s claims. In essence, he did not believe the applicant was a genuine claimant.

11.  In light of that finding, the adjudicator went on to conclude that the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Pakistan.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the 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.

13.  There are eight grounds in this affirmation and most contain no particulars.  Those include ground 5, 6, 7 and 8.  As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  The applicant said in open court that his lawyer specifically instructed him not to complain about him to the adjudicator; he said that his case was done here and he could go to the High Court.  The applicant submitted that he did not know the failings of his lawyer was a ground of appeal.  Yet when I asked if he ever saw his assigned duty lawyer again after the hearing before the Director of Immigration in 2016 the applicant said no.  I highly doubt this conversation ever happened and is the truth.  These grounds have no merits.

14.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  The adjudicator actually made no in-depth reference to any COI material or the concept of State protection.  He had no need to considering the reason he dismissed the applicant’s appeal.  These grounds are not arguable.

15.  Ground 3, a failure 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, has no merits.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Pakistan under such circumstances.  There is no merit in this ground.

16.  The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He said despite this he was still confused.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill-prepared, needed more time or unhappy to proceed with the appeal.

17.  There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator.  The Director’s letter rejecting it is dated 12 June 2017 but the oral appeal hearing was on 7 June 2017, however the adjudicator was aware of the BOR 2 risk and had given the applicant an opportunity to discuss it with him at the appeal hearing.  Therefore, the adjudicator did not consider it necessary to conduct a second hearing subsequent to the letter of the 12 June 2017 when the Director made a further decision refusing the applicant’s non-refoulement claim under that risk.  The adjudicator’s decision is entirely reasonable and there is no prejudice to the applicant.

18.  I do not find any ground that shows there was an error of law 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.

19.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1