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

HCAL 503/2018

[2019] HKCFI 2562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 503 of 2018

  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:

1.  The Applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 1 April 2014 and surrendered to the Immigration Department on 28 July 2014 when he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some land mafias in his home area over certain land dispute. He has since been released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Lahore, Pakistan.  After leaving school he worked as a farmer in Lahore where his family owned some land in his home area where there were land mafias illegally occupying other people’s land and dealing illegal drugs on them.

3.  In December 2006 his cousins got into a fight twice with some of these land mafias over their dealing of drugs on their family land with no serious consequences, but later one day the Applicant heard that his father was shot by these land mafias on the field, and when he rushed there he was also shot in his right ankle.

4.  Both the Applicant and his father were taken to the hospital where his father later died from his gunshot wound, and although four land mafias were as a result arrested by the police, they were later released after having paid bribe to the police.

5.  After his discharge from the hospital the Applicant took shelter at his grandparents’ place elsewhere in Lahore, but as his family continued to have disputes and fights with those mafias who threatened to kill him and his family, the Applicant felt it was no longer safe to remain in Pakistan, and with assistance of a friend he departed on 26 March 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 19 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 15 June 2017 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 risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 assessed the level of risk of harm from those land mafias in his home village upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it is unlikely that they would still have any adverse interest in him after his departure from his home district, that in the absence of any official involvement that state or police 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 201 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 adult with work experience to move to other area away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for those land mafias to locate him.

8.  On 23 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 March 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found some exaggerations in the Applicant’s account but which was largely consistent to his claim, and was prepared to accept that he may have been involved in certain dispute between his cousins and some local criminals over street drug dealing, that his father died in that shooting when he was also injured, and that there may have been further threats from those local criminals to harm or kill him at that time,but not after he had left his home district or that they would still have any ongoing adverse interest in him after all these years, and that he should be able to safely relocate to other part of Pakistan such as Karachi where he had stayed before and without any possible threat of harm.  

10.  On 28 March 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 the following grounds for his intended challenge:

  (1)  lack of legal representation in his appeal before the Board or his application for judicial review;

  (2)  lack of language assistance in his application for judicial review;

  (3)  failure on the part of the Director to give proper explanation as to how the COI were used or relied on to assess and reject his claim;

  (4)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing;

  (5)  irrational of the Board to find that he was not facing any appreciable risk of harm upon his return to Pakistan; and

  (6)  failure on the part of the Board to rely on relevant COI in deciding that it would be safe for him to relocate to other part of Pakistan.   

11.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant since the Director’s decision has been superseded by the Board’s decision, as is the case here, and hence it is not open to the Applicant to challenge the Director’s decision by way of judicial review.  As such I shall only focus on those grounds which are applicable to the Board’s decisions.

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 testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator with the assistance of an interpreter without any difficulty.  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) of not being provided with any language assistance in his present application for leave to apply for judicial review which by itself cannot form any proper ground for his application, but the fact is that he clearly had legal assistance in the preparation of his Form 86 and his supporting affirmation in his present application.  As such there is no basis for his complaint under this ground.

15.  Grounds (3), (5) and (6) can be considered together as they refer to the Board’s finding as to the risk of harm which even on the Applicant’s own case was confined to the local land mafias or criminals in his home district only, and with the benefit of hearing the Applicant in evidence at the hearing as well as relevant COI, upon which the adjudicator was clearly entitled to make his evaluation and findings set out in details in paragraphs 32 – 56 of the Board’s decision on the issue of reasonable relocation alternatives available to the Applicant.  In the premises I do not see how such decision can be argued as irrational or unreasonable, or that there is any basis or merit in any of these grounds of the Applicant.

16.  As for the Applicant’s complaint in the remaining Ground (4) over the non‑attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the Applicant either.

17.  As noted above, the fact is that it has been established by both the Director and the Board in their decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

18.  In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

19.  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