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

CACV 309/2018

[2018] HKCA 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 309 OF 2018

(ON APPEAL FROM HCAL NO. 652 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1.  Appeal from First Instance judge

1.1  This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Woodcock given on 5 July 2018 refusing leave to the applicant to apply for judicial review.

1.2  The applicant has failed to file his skeleton arguments according to the directions given to the Registrar of Civil Appeal and contained in the letter to the applicant dated 5 September 2018 at paragraphs 3(1) and 4.  In such circumstances, the hearing date of the appeal, namely, 13 November 2018 was vacated, and this Court will proceed to consider the appeal on paper.

2.  Factual background

2.1  The applicant is a Pakistani national who allegedly entered into Hong Kong illegally by boat on 1 June 2015. He surrendered to the Immigration Department on 15 June 2015.  On 16 September 2015, the applicant raised his torture claim.  The basis of the applicant’s claim is that if he were to return to Pakistan he would be harmed or even killed by the Irfan (‘I’) and Adnan (‘A’) brothers because he had a fight with A during a cricket match and injured him.

2.2  The background facts have been summarized in the Torture Claims Appeal Board Decision (‘the Board’s Decision’) as follows :

1)  The applicant claimed that in April 2015, he had a fight with A during a cricket match, where A was more seriously injured than the applicant after the fight;

2)  A was the applicant’s next door neighbour;

3)  Two days later while on the street, the applicant was ambushed by friends of A;

4)  Four to five days later, I and friends of A attempted to assault the applicant on the street again.  The applicant managed to outrun them and arrived home safely;

5)  The applicant’s parents advised the applicant to leave.  The applicant found a friend who helped him with his visa application.  The applicant’s friend arranged the applicant to stay in Lahore, Pakistan during the waiting period.  Nothing happened during his stay in Lahore;

6)  The applicant was able to enter China on the strength of his passport.  The applicant later entered into Hong Kong by boat;

7)  The applicant heard from his parents that A and I were still looking for him.

3.  The Director’s Decision and the Director’s Further Decision                                    

3.1  The Director decided against the applicant’s torture claim on 25 July 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk and torture risk (‘Director’sDecision’).

3.2  By a further decision of the Director of 9 May 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4.  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 15 August 2016.  After a hearing held on 18 May 2017, the Board dismissed the applicant’s appeal on 1 September 2017 (‘Board’s Decision’).

4.2  The Board found there were numerous inconsistencies in the applicant’s evidence and it refused the appeal based on the findings of the applicant’s lack of credibility :

‘ 27. On closer analysis, I find A-P’s story full of implausibilities. On both occasions when Adnan’s friends and Irfan with Adnan’s friends threatened “We will kill you!”, A‑P was in the street. If they had wanted to kill A‑P, why did not they simply go to A‑P’s home to find A‑P?

28. Irfan and Adnan and A‑P were next door neighbours.  If Irfan and Adnan and Adnan’s friends had wanted to assault A‑P, they had no need to ambush A‑P in the street, and on the second occasion, did it so clumsily that A‑P was able to run home.

29. Even if A‑P had run home, they could simply go to A‑P’s home to complete their mission of assaulting A‑P, there was no reason why they would give up simply because A‑P had run home.

30. In the Hearing, A‑P explained that Irfan and Adnan and the attackers were not allowed to enter A‑P’s home.  I asked A‑P does that mean they were allowed to attack him in the street but not allowed to enter his home to attack him.  A‑P said “Yes”.

31. I find that is impossible, incredible and implausible. If the people were law abiding people, they would not attack A‑P, much less killing A-P.  If the people were not law abiding people, there was nothing to stop them from entering A‑P’s home.

32. The only explanation is that there had been no assault and attempted assault, and there had been no threats to kill.

....

49. One or two inconsistencies, contradictions, impossibilities, incredibilities and implausibilities may be due to lapse of memory, with so many of them, I am sure it is due to the fact that A-P had made up the story, but had not thought out the full details of his script, and had forgotten the details of his script here and there, now and then.

50.   I reject A‑P’s evidence as being incredible.

…’

5.  Decision of DHCJ Woodcock

5.1  DHCJ Woodcock on 5 July 2018 refused to grant leave to the applicant for judicial review.

5.2  DHCJ Woodcock considered the merits of the case.  After considering the case with rigorous examination and anxious scrutiny, the Judge found that the applicant’s appeal against the Board on three grounds was not made out.

5.3  The applicant’s first ground failed, as there was no evidence to suggest that documents in English affected the applicant’s understanding of the Board proceedings.

5.4  The applicant’s second ground failed, as the applicant failed to show any rational basis to object to the Board’s assessment of his credibility.

5.5  The applicant’s third ground failed, as the applicant did not raise his concern about whether he could complain during the Board appeal process.  If he was genuinely concerned about it at the time, he should have complained there and then.  He did not.

5.6  In short, there was no arguability and no realistic prospect of success in the applicant’s application for judicial review.  The applicant’s application was refused.

5.7  The applicant filed his Notice of Appeal to the Court of Appeal on 11 July 2018.

6.  Notice of appeal

6.1  The notice of appeal of the applicant stated that :

‘ ........ the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.’

6.2  The grounds of appeal are bare allegations with no supporting reasons or arguments.

6.3  In essence there are three grounds relied upon by the applicant :

1)  He will face hardship if he is to be refouled (returned) to his home country (‘Hardship argument’);

2)  The Board’s reliance on the source of news as referred to in the Director’s Decision and the Director’s Further Decision is unjustified as it is not officially recognized and at most hearsay (‘News argument’);

3)  The cases as cited in the Board’s Decision are outdated (‘Case argument’).

7.  Our view

7.1  We are of the view that the applicant’s appeal is without merits.

(1)   Hardship argument

7.2  The applicant states that he would face hardship if he is to be refouled back to Pakistan.

7.3  The Board has stated the correct legal position regarding the applicant’s Hardship argument.  It is settled law that the asylum seeker should be required to establish a reasonable degree of likelihood that his/her fear will materialize in that persecution will take place.  The test of a ‘real risk’ was approved by the Court of Final Appeal in Hong Kong in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

7.4  The Board has already made its finding of primary facts.  It has found that the applicant cannot establish risk of persecution, BOR 3 risk, torture risk and BOR 2 risk because on its finding, the applicant was not a credible witness.

7.5  As a result, the applicant’s own case on the facts and evidence does not support any alleged claim of hardship.  The Hardship argument falls apart.

(2)    News argument

7.6  The ‘source of news’ was not identified by the applicant but presumably he was referring to the information contained in the Country of Origin (‘COI’) information.  The Board has already held that State protection in Pakistan is available to the applicant.

7.7  There is no merit in his argument that the Board’s Decision ‘significantly relied on source of news which is not officially recognized’ or is hearsay, because the Board’s Decision was predominantly decided against the applicant based on his lack of credibility.

7.8  As a result, there is no merit in the applicant’s complaint of source of news being unreliable and at most hearsay.

(3)    Case argument

7.9  The applicant had simply not identified which authority relied upon by the Board is no longer good law.

8.  Disposition

8.1  It has not been shown that there is any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  DHCJ Woodcock was correct to refuse to grant leave to apply for judicial review.

8.2  There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.