IMTIAZ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL462/2017

[2018] HKCFI 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 462 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 entered Hong Kong illegally on 30 November 2012 and was arrested on the same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 23 September 2015 and 14 December 2016.  He lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 20 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 28 July 2017 and requested an oral hearing which was set down on 22 December 2017.  The applicant appeared in person having had his application for legal aid refused.

2.  The basis of his claim was that if he was refouled to Pakistan he would be harmed or killed by a man called Peer and his gang due to a land dispute and a murder case.  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 summarise it here.

3.  The applicant’s father and uncle had inherited a piece of land in the village which they farmed.  When the applicant was not even 10 years old his uncle was shot dead by two men working for Peer who was an influential landlord connected to the Pakistan Muslim league and a member of the National Assembly in their area.  They had tried to resist the two men taking over the land forcefully and building a wall on it to use it for canvassing during elections because of its prime location.  The police were called but no arrests were made because of the influence of Peer.

4.  Despite that murder, the land was still illegally occupied and built on by Peer’s people. The applicant’s father was helpless and filed a complaint against the two murderers who had disappeared to police stations at high levels but to no avail.  His father was often threatened by men associated with Peer to withdraw the murder complaint.  The family lived like this for three years and were supported by relatives.

5.  About three years after the murder the applicant’s father was attacked with an axe and told to withdraw the murder complaint.  He refused and the applicant was also attacked as well was hospitalised for months due to a head injury.  This attack was reported to the police but the applicant does not know if any arrests were made.  After this attack the family moved away to a village about two hours from their home to stay with relatives and lived there for about 10 years.  Even when they lived there, men would approach the applicant’s father and tell him to withdraw the murder case or they would kill the applicant.

6.  After about 10 years the applicant and his father decided to return to the village to see what had happened to their house and land.  When they entered the house they were approached and threatened by men who accuse them of trespassing on their property.  They said they were Peer’s men and they had taken over the land and house.  The fired bullets into the air and warned them to leave.  They said they would kill them if they did not leave.  The applicant and his father left immediately.  The applicant’s father then decided to send the applicant abroad because he was afraid that Peer would attack the applicant to hurt him.  It was arranged for the applicant to go to Hong Kong via China.

7.  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”).

8.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and claim which in the main, he accepted as credible.  His findings are that the private and personal disputes the applicant refers to do not directly involve him and he has no direct interest, financially or legally in the land.  Peer and his people have known of his whereabouts at all times yet he has only been, on his own facts, injured once when he was about 11 or 12.

9.  The adjudicator then applied the law to the applicant’s evidence and found the applicant had not suffered any injuries or ill-treatment, be it physical or mental that attained a minimum level of severity and had not been subjected to torture or CIDTP nor was he at any substantial risk of being subjected to torture or CIDTP in the future.  He had not been assaulted by anyone acting in an official capacity or with the consent or acquiescence of a public official.  He concluded that the applicant had failed to establish he would face a risk of persecution, a real risk of torture or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2 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

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 assertions but 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 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.

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