ALI ZULFIQAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 842/2017

[2018] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 842 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of Pakistan who entered Hong Kong illegally on 27 April 2009 and was arrested by the police on the same day. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousins over certain disputes with them.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Bajo, District Gujrat, Punjab, Pakistan.  After leaving school he worked in various jobs including operating a public call office for car renting in Karyanwala.  In 2005 his cousin TH who was single became acquainted with one of the applicant’s good friends and customers of his public call office and car stand BT who was a widow with children.  They then started courting secretly as such relationship would be regarded as shameful in Pakistan and risk being killed by their respective family in the name of honour killing.

3.  One day one of TH’s brothers discovered her in bed with BT which led to both of them being killed by her brothers who also blamed the applicant for introducing BT to their sister and threatened that they would also go after him in revenge.  Feared for his life the applicant fled to various places in Pakistan including Karyanwala, Lahore and Islamabad before deciding to leave Pakistan in April 2009 for China and from there he sneaked into Hong Kong on 27 April 2009 and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 30 September 2014 with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 9 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

5.  In his decision the Director found no substantial grounds for believing that the risk of harm from those brothers of TH is likely to materialize upon the applicant’s return to Pakistan, that it was a private personal dispute without any involvement of the state or the police that state protection would be available to the applicant if resorted to, and that 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 adult with working experiences to move safely to other areas away from his home district such as Karachi, Lahore or Islamabad where it would be well beyond the capability or resources of TH’s brothers to locate him.

6.  On 17 February 2015 the applicant filed his appeal against the Director’s decision to the Torture Claim Appeal Board (“the Board”), for which he attended an oral hearing on 7 December 2015 before the Board during which he declined to give any further evidence or to answer questions from the adjudicator for the Board.  On 1 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board did not accept that those brothers of TH would still be interested in locating the applicant all over Pakistan after all these years, or that they would have such manpower or resources and be willing to expend the same to look for him in areas other than his home district where it would not be unreasonable for the applicant to relocate.     

8.  By a Notice of Further Decision dated 9 March 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.  On 23 March 2017 the applicant again filed an appeal against that decision of the Director to the Board, which was dealt with by the same adjudicator without any further oral hearing as it was noted that the applicant did not submit any additional facts to the Director relevant to BOR 2 risk nor did he add anything new in his Notice of Appeal to what he had already stated before, and on 27 October 2017 his appeal was dismissed by the Board which again confirmed the Director’s decision. 

10.  On 3 November 2017 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 forwards the following grounds for his intended challenge:

(1)     lack of legal representation in his appeal before the Board;

(2)     lack of language assistance for not providing him with the service of an interpreter to assist him in dealing with his claim relevant to BOR 2 risk including submitting additional facts for BOR 2 risk at the invitation of the Director;

(3)     Wrongful exercise of case management power on the part of the Director for improper reliance on COI in his assessment of the effectiveness of state protection available in Pakistan; and

(4)     lack of fair hearing for considering and rejecting his claim under BOR 2 risk without providing him with any oral hearing.   

11.  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.

12.  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 without 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.

13.  His complaint under grounds (2) and (4) can be considered together as they relate to the right to have the assistance of interpreter and to a further oral hearing for his claim under BOR 2 risk.  For the former I am of the firm view that the same principle in relation to the right to legal representation as referred to above applies as well to the service of interpreter.  In any event even up to now in his leave application when he was assisted by an interpreter at his oral hearing before me, the applicant did not submit any additional facts relevant to BOR 2 risk.

14.  Similarly there is no absolute right to an oral hearing, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 and the question must depend on the standards 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.  In the absence of any additional facts submitted by the applicant, both the Director and the adjudicator were entitled to consider his claim under BOR 2 risk on the facts and evidence available before them without a further oral hearing, nor did he as noted above do so at the hearing before me.  In the circumstances I do not find any procedural unfairness in their consideration of his claim under BOR 2 risk by the Director and the Board without a further oral hearing.

15.  As for his complaint under ground (3) of improper reliance by the Director of COI in his assessment of the effectiveness of state protection in Pakistan, the applicant did not provide any particulars or specifics or elaboration of this complaint, and having examined those COI listed and referred to by the Director in paragraph 18 of his decision, I do not find any basis or merits in this complaint of the applicant.

16.  The fact is that it has been established by both the director and the Board in their decisions that the risk of harm from those brothers of TH is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Pakistan, there is simply no justification for affording him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  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