SYED RASHID ASLAM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 571/2018

[2021] HKCFI 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 571 of 2018

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;

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Pakistan who last arrived in Hong Kong on 19 November 2002 with permission to remain as a visitor up to 21 November 2002 when he did not depart and instead overstayed, and on 23 June 2006 he raised a torture claim with the Immigration Department later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the police or military then controlled by the political party Pakistan Muslim League (Q) (“PML(Q)”) for his involvement in rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sarai Alam Gir, Punjab, Pakistan. When being a student he already followed his family’s tradition to support PML(N) and joined their youth wing. After graduating from university he became the vice president of their local branch in Punjab.

3.  In 1999 there was a coup d’etat by the Military which overturned the government with General Musharraf appointed as the President backed by PML(Q) which then started to arrest and persecute PML(N) members and supporters, and in May 2000 the Applicant was arrested and detained by the Army during which he was interrogated and tortured numerous times until eventually in February 2002 when he was released on bail.    

4.  Fearing that he would face further persecutions from the military or the authorities, the Applicant departed Pakistan in May 2002 for China, and from there he later travelled to Hong Kong on 19 November 2002 as a visitor but overstayed his visa, and later when he heard that false criminal charges had been brought against him in Pakistan and that some members of his family had been killed by the authorities, he raised his torture claim on 23 June 2006 with the Immigration Department which he then withdrew and later requested to re-open, and when it was later allowed by the Immigration Department to be treated as a non-refoulement claim, for which he completed a Supplementary Claim Form (“SCF”) on 12 May 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer.     

5.  By a Notice of Decision dated 25 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Pakistan government or authorities or the military or police or PML(Q) supporters upon his return to Pakistan as low due to the fact that the political situation in Pakistan has changed significantly since his departure with President Musharraf having resigned from his presidency, that PML(Q) has lost its power and that PML(N) has become the present ruling party, that there is no longer any basis for his alleged fear of harm or persecution at the hands of the Pakistan government or the military or the police or PML(Q) supporters, that there is no reason to expect that any criminal charges brought against him would not be properly or thoroughly investigated or that he would not face any fair trial under the current system in Pakistan, that in the absence of any official involvement that state or police protection would be available to the Applicant from any risk of harm from the PML(Q) supporters, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied and highly educated adult to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for those PML(Q) people to locate him.

7.  On 30 May 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but he was then seriously out of time with his appeal, as section 37ZS of the Ordinance requires that the notice of appeal be filed within 14 days of the decision, which in the Applicant’s case would put the deadline for him to do so at 10 December 2014, and hence he was late by more than 17 months with his appeal. 

8.  Pursuant to section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow such late filing of the Applicant’s notice of appeal, and by a written decision dated 7 June 2016 the Board refused to allow the late filing of his notice of appeal. 

9.  On 2 September 2016 the Applicant filed a Form 86 in HCAL 161/2016 for leave to apply for judicial review of the Board’s decision, and on 15 December 2016 P Li J refused to grant leave to his application upon finding none of the grounds raised by the Applicant reasonably arguable, that there was no error in law or in procedure in the Board’s decision, and that there was no realistic prospect of success in the Applicant’s intended application.

10.  On 10 January 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering additional representations from the Applicant through his lawyer from DLS, the Director by a Notice of Further Decision dated 15 May 2017 rejected the Applicant’s claim under BOR 2 Risk upon finding that he had failed to establish that his BOR 2 rights would be violated should he be refouled to his home country.

11.  The Applicant again lodged an appeal to the Board on 25 May 2017 against the Director’s Further Decision, of which the Board did not find necessary to conduct any oral hearing, and proceeded to deal with the appeal in the Applicant’s absence and on paper. On 15 March 2018 his appeal was again dismissed by the Board which confirmed the Further Decision of the Director.

12.  In its decision the Board accepted the Applicant’s claim as to his political activities as a member and supporter of PML(N) in Pakistan and his arrest, detention and torture by the authorities prior to his departure as stated in his claim, and decided on his BOR 2 Risk on such basis without the necessity of an oral hearing, while those new allegations raised by the Applicant after his departure of Pakistan were based entirely on hearsay unsupported by any evidence up to the time of his appeal, and that in any event with the undisputed facts based on reliable COI of significant changes in the political situation in Pakistan since the Applicant’s departure in that Pakistan is now governed by a PML(N) government having won the majority in the 2013 election that there can be no basis in those hearsay allegations with the only reasonable conclusion that they should be afforded no weight at all, and found in any event that the Applicant has failed to show that he would be at risk of harm from capital punishment inflicted by the Pakistan government or that there would be any foreseeable breach of his rights protected by BOR 2 if he is refouled to Pakistan or that there is any real risk that he will face any harm from the Pakistan government which could place his life at risk, and concluded that there is nothing in the evidence to show that he will be at risk of BOR 2 harm if refouled that his claim failed on the BOR 2 Risk ground.     

13.  On 6 April 2018 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he attached a copy letter dated 19 March 2018 from DLS as well as a further letter from him containing essentially his grounds or complaints that it was procedurally unfair for the Board not to conduct an oral hearing and therefore deprived him of the opportunity to adduce further evidence for his BOR 2 claim including that in Pakistan it is the military which controls the government so that the state would not be able to protect him from the harm which he fears from the military in his claim.

14.  However, before his application could be dealt with by the court, the Applicant on 22 August 2018 wrote to request to withdraw his application because he was then being detained by the Immigration Department and did not wish to proceed with his application. Accordingly on 29 August 2018 his request was granted and that his application was treated as withdrawn.

15.  On 22 May 2020 the Applicant wrote to request to “re-open” his leave application, and given the fact that his leave application has never been formally determined, and the serious implication of his application, I acceded to his request and directed that an oral hearing be scheduled for his application. 

16.  The Applicant however did not appear at the first scheduled hearing on 13 August 2020, nor did he attend the re-scheduled hearing on 20 October 2020, for which he subsequently explained in a letter received on 30 October 2020 that he needed more time for his “preparation and documentation” and asked for a “couple of months” for his hearing without providing any further details or particulars as to what preparation or documentation that he required for more time, and as I do not find any justification for yet another hearing for his application, I therefore refused his request and proceeded to deal with his leave application in his absence and on paper.  

17.  With regard to the Applicant’s primary complaint that the Board determined his appeal against the Director’s BOR 2 assessment without holding an oral hearing, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277.

18.  The Applicant earlier in 2017 already submitted his additional information and representations relevant to BOR 2 Risk to the Director via his lawyer from DLS but which were found to have failed to establish any personal or real risk of being deprived of his life in violation of his rights under BOR 2 Risk, and hence in his subsequent appeal to the Board he was fully aware of the shortcomings in his evidence as found by the Director regarding his BOR 2 claim, and did make further or additional representations and submissions in his Notice of Appeal against the Director’s decision regarding his BOR 2 claim, and which had been considered and determined by the Board albeit without a hearing and in his absence.

19.  It is therefore plain that the Applicant had been afforded ample opportunities to make worthwhile or effective representations and/or to submit further details regarding his hearsay allegations relevant to BOR 2 Risk to the Board, and that it is not enough for him to simply say in his written submission that “he may have been able to provide details that the Adjudicator found lacking” had the Board held an oral hearing. I note that even now in his present application before me, the Applicant has not identified what additional facts or representations that he would have put before the Board at an oral hearing that could advance his case under BOR 2 Risk. I also note that he has been in Hong Kong since 2002 and first raised his claim back in 2006, and would therefore have had ample time and opportunities to obtain whatever additional evidence or information in support of his claim.  

20.  As for his other complaint that since the Pakistan government is controlled by the military, the state should be held accountable for abuse by its military, and that had the Board held an oral hearing, that he “may be in a position even now to have given evidence at an oral hearing to support his view that the military control the government”.

21.  Again the Applicant has not identified what additional evidence that the military controlled the Pakistan government that he would have given to the Board in an oral hearing that could assist or advance his BOR 2 claim. As correctly stated by the Board that BOR 2 is interpreted as a right not to be arbitrarily or unlawfully deprived of life by the state, and that sentence of death may only be imposed and carried out by a competent court which clearly refers to the judicial imposition of a sentence of death, and therefore the perpetrator here which BOR 2 protects against is the government of the nationality of the Applicant, which is the government of Pakistan, of which the Board as noted above correctly found nothing in the evidence to show that the Applicant will be at risk of BOR 2 harm if refouled.

22.  Henceforth if it is the Applicant’s case that it is the risk of being harmed or killed by the military rather than the state or judicial imposition of a sentence of death which he fears, as he appears to have so claimed in his submissions, then it would be those other claims under torture risks, BOR 3 risks and persecution risks which have already been properly determined by the Director and the Board in their earlier decisions and which the Court had already in HCAL 161/2016 disposed of as noted above.

23.  As such and for the reasons given, I do not find either of the Applicant’s grounds or complaints reasonably arguable for his intended challenge.     

24.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.      

25.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

26.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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