RAZA ASIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL742/2017

[2018] HKCFI 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being absent in open court;

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 was refused entry into Hong Kong on 24 August 2011 but made a torture claim.  That torture claim was refused on 21 December 2011 because the applicant failed to provide a completed questionnaire. He did not appeal that decision.  The police arrested the applicant on 5 February 2013 for failure to report to the Immigration Department.  On 5 March 2014 the applicant lodged a non-refoulment protection claim which the Director of Immigration (“the Director”) rejected on 12 August 2016 and 23 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 21 September 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 6 October 2017 and requested a hearing which was set down for 8 March 2018.  A notice of hearing was sent to the address supplied by the applicant on 3 January 2018 but the applicant was absent on the date of hearing and there was no answer when calls were made to the mobile phone number supplied by the applicant.  I proceeded to consider his application on the papers.

3.  The basis of his claim was that if he were to be refouled to Pakistan he would be harmed or killed by people from the Ehl-Sunnat because he had been born a Sunni Muslim but converted to be an Ahmadi.  They were essentially Sunni Muslims from his area who were unhappy he had converted.  Both the Director and the adjudicator of the TCAB had set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.  He was born a Sunni Muslim but worked in 1993/4 with some Ahmadis who influenced him, leading him to consider conversion.  Later in early 2011, when reacquainted with his Ahmadi friends again he decided to convert.  His conversion was simple; he told the staff at an Ahmadi mosque in his home city that he wanted to convert, they then declared him a member of the Ahmadi and they prayed for him.

5.  After his conversion, his problems began.  A few days later, three unknown Sunnis stopped him in the street and reprimanded him for his conversion but he did not take it seriously. A week later, it happened again when he was returning from the mosque but this time he was assaulted and told if he went to the mosque again it would be his last day on earth.  He did not take the threat seriously until two days later a bomb went off as he entered that mosque.  He believed he was the target and luckily he was not injured.  He made his way home immediately when someone told him that armed Sunnis had broken into his house and damaged his property. As he arrived home, two men tried to shoot him with guns but he escaped unharmed.  He went to his friend’s home about 90 minutes away.  He hid there for about a month.  He received messages that Sunni Muslims were looking for him at home.

6.  He made arrangements to leave Pakistan and went home to meet an agent.  Upon his return to his friend’s house where he had been staying for a month, his car was suddenly ambushed and three Sunnis dragged him out and beat him up.  Luckily passersby intervened and helped him get away and seek medical treatment.  The police there told him he had to make a complaint in his home city.  He relocated to live with an uncle in Karachi for a month before flying to China on 21 August 2011.

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 Director set out the applicant’s evidence in full and applied the law and key legal principles.  He considered and referred to relevant, up-to-date and objective Country of Origin information (“COI”).  He found that the applicant was unsuccessful on his own facts in showing that he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He found that the COI referred to indicated there was reasonable and sufficient State protection available if there was any risk if the applicant returned to Pakistan and that internal relocation was a viable option without undue hardship.

9.  The adjudicator treated the appeal hearing as a rehearing.  The applicant was legally represented during the oral appeal hearing and elected to answer questions and give evidence.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He too considered the COI relevant to Ahmadis; COI that was ample, relevant and more than objective.  The adjudicator recognised from the COI that if the applicant was a true converted Ahmadi and practising his faith then the anti-Ahmadi laws amounted to persecution.

10.  He considered the applicant’s credibility and reliability and the approach taken in assessing credibility in such claims.  He discussed with the applicant his concerns about what he found implausible in his evidence such as how the Sunni Muslims took aim at him with guns on a crowded street and how they stopped him in a hire car and dragged him out of it to beat him up.  He was unimpressed with the applicant’s explanations.  He found his non-persuasive and inconsistent explanations for those implausibility’s undermined his credibility.

11.  He also tested the applicant’s claim that he had genuinely converted to be an Ahmadi; he asked questions about his beliefs and conversion.  The applicant’s evidence did not impress him.  There was no evidence on the Internet about the bomb attack on the Ahmadi mosque in Lahore that the applicant is sure was targeted at him.  The persecution of Ahmadis is minutely documented and as such a bomb attack on a mosque would definitely be online.

12.  The adjudicator also found the fact that he only learnt of the existence of an Ahmadi mosque in Hong Kong about a week before the appeal hearing undermined the genuineness of his conversion.  It appears that he has not taken steps in the six years he has been in Hong Kong to find other Ahmadis or a mosque.  The adjudicator sets out in full why he did not believe the applicant was a genuine convert, not a genuine Ahmadi and therefore not a genuine claimant.

13.  As a result of that finding, he found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 and BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. He confirmed the decision of the Director.

Leave to apply for judicial review

14.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the Director’s and adjudicator’s decision to be without fault.  They analysed material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

15.  After a reading of the applicant’s affirmation, it would appear that the applicant has only one ground against both the decision makers and it is the same complaint.  There are no particulars in his affirmation.  It is that the Director and adjudicator has failed to consider the extended concept of State acquiescence which has led to the unfair outcome of rejecting the applicant’s claim.  He tried to lodge a complaint with a police station who told him he had to lodge that complaint with his local home police station.  The applicant claims this supports the submission that the police in Pakistan are corrupt and the applicant needed to bribe them before receiving assistance.

16.  A reading of the Director’s decision shows he fully considered the extended concept of State acquiescence; he found no evidence of official State acquiescence or passive State acquiescence.  His assessment was that the Pakistani government/police did not know or had reasonable grounds to believe of his claimed fear treatment, and if the Pakistani government/police knew or had reasonable grounds to believe of the feared treatment, there is no indication that the government/police will not exercise due diligence to prevent, investigate and punish the people of the Sunni Muslim, in particular in his area, consistently, see paragraph 51.

17.  The adjudicator did go into COI in detail but not the extended concept of State acquiescence because his conclusion after the rehearing was that the applicant was not credible therefore, the applicant’s submission in his affirmation that the adjudicator was indifferent and just agreed with the decision of the Director is inaccurate.

18.  The adjudicator of the TCAB was very meticulous and his analysis of the applicant’s credibility cannot be faulted.  I see no errors of law by the adjudicator nor the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhance Wednesbury test; they were not Wednesbury unreasonable.  This application is not reasonably arguable and 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