LEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 637/2018

[2019] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 637 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 47-year-old national of Pakistan who last entered Hong Kong illegally on 27 June 2012 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by three men for having witnessed a murder committed by them in his home village.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised as a Shia Muslim in Village Bari Jhodewali, District Sialkot, Punjab, Pakistan where his wife and children still live.  After leaving school he worked as a factory worker, got married and formed a family.

3.  In his home village the Shia and Sunni Muslims had had religious disputes for some times, and one day in April 2012 when the applicant was attending a Shia gathering in the village, some Sunni Muslims including Imran, a village trouble-maker, came to disrupt the gathering by firing their pistols to the sky, and when a friend of the applicant Zaheer who organized the gathering protested to Imran and his men which turned into a heated quarrel between them that Imran shot Zaheer in the head.  Although by then most of the Shias had already left, the applicant was still there and witnessed the shooting.

4.  After Imran and his fellow Sunnis had fled from the scene, the applicant brought Zaheer to the hospital where he was certified dead.  When the police started to investigate the shooting, the Applicant was threatened by Imran that if he dared to give a statement to the police, he would be killed too.

5.  As he felt that his life was in danger, the Applicant decided to leave Pakistan for his own safety, and so he departed on 19 June 2012 for China, and from there he later sneaked into Hong Kong and raised his torture claim, for which he later completed a Non- refoulement Claim Form (“NCF”) on 10 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 14 October 2015 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that Imran and his men would harm or kill him or that his perceived fear is real and foreseeable, that since the Applicant had not given any statement or assistance to the police in their investigation of the killing there is no reason for Imran to harm or kill him, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, 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 187 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other parts of Pakistan away from his home district in large cities such as Islamabad, Karachi or Lahore where it would be difficult if not impossible for Imran or his men to locate him.

8.  By a Notice of Further Decision dated 28 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 22 October 2015, for which the Board did not hold any oral hearing and dealt with his appeal in the absence of the applicant on paper.

10.  On 23 February 2018 the Board found that even putting the Applicant’s case at the highest as asserted that he still failed to substantiate his claim under any of the applicable ground, and therefore dismissed his appeal and affirmed the Director’s decisions.

11.  On 13 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  Lack of legal representation in his appeal before the Board which is unfair;

(2)  Failure to apply high standards of fairness by the Board when it decided not to hold an oral hearing for his appeal;

(3)  Failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk;

(4)  Procedural unfairness on the part of the Board for unlawfully fettered its discretion in refusing his appeal on the grounds that they did not satisfy the requirement, that the Adjudicator acted procedurally unfair in dealing with his appeal, that the decision to refuse his appeal was unreasonable and unfair in the public law sense or the result of procedural errors or unfairness, and for failing to meet the greater care and duty owed to self-represented claimant;  

(5)  That the Director failed to properly consider and balance the COI as to the situations in Pakistan in assessing his claim.   

12.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar [2004] 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to submit his appeal and representation to the Board without difficulty.  As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.  As for his complaint under Ground (2) that the Board failed to apply high standards of fairness when it decided not to hold any oral hearing for his appeal, Cheung CJHC as he then was, in ST v Betty Kwan & Ors [2014] 4 HKLRD 277 already made it clear that there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances of the particular case.

15.  In the Applicant’s case, given the facts asserted by him as to his claim, the Adjudicator was entitled to make his decision on the basis that the applicant “had set out his case clearly in the Non-refoulement Claim Form and he had attended an interview in which thorough questions about his case had been asked and he had plenty opportunities to explain himself on all matters”, and having “reviewed the whole case preliminarily, I decided not to hold a hearing because I found that no worthwhile and effective representations could be made.  I am satisfied that this appeal can justly be determined without a hearing.”

16.  It is therefore clear to me that when the Adjudicator decided not to hold any oral hearing, he did not intend to take issue with the Applicant’s credibility as to his assertions for the purpose of his assessment of his claim under the applicable grounds, as he went on to find, correctly in my judgment, that even “putting (the Applicant’s case) to the highest that he was threatened of being harmed or killed if he made a statement to the police on the murder of Zaheer” [52, 59], that the Applicant failed to substantiate his claim under any of the applicable grounds or that he was entitled to non-refoulement protection. In the premises I do not find this ground reasonably arguable in the Applicant’s intended application.   

17.  Regarding his Ground (3) it is plainly wrong for the Applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 Risk, which the Director clearly did in paragraphs 4–6 of his Notice of Further Decision explain the reasons for rejecting the Applicant’s BOR 2 Claim. Having examined rigorously the Director’s Further Decision, I am unable to find any reasonably arguable basis to challenge his reasons for rejecting the Applicant’s BOR 2 Claim.

18.  As for the applicant’s various complaints under Ground (4), they are just some broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision or in what way was the decision unfair or unreasonable, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the Applicant in any of these complaints, again I do not see how any of them is arguable for his intended challenge. 

19.  As for his complaint under Ground (5) over the Director’s reliance of COI in its assessment of the situations in Pakistan and of his claim, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 13 – 14 of the decision of the Director as well as those considered by the Board, I do not find any basis or merits in this complaint of the Applicant.

20.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

21.  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.

22.  For these reasons I am not satisfied that there is any realistic 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