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

HCAL 1545/2018

[2020] HKCFI 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1545 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 33-year-old national of Pakistan who entered Hong Kong illegally on 9 August 2009 and was arrested by police on 10 August 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the administrative head of his home village over some property dispute, and after his torture claim was rejected, he sought non-refoulement protection on the same basis.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Qila Islam Nagar, District Gujrat, Pakistan.  He did not receive any formal education and mainly assisted his father in farming on the bigger piece of his father’s land in the village, with the other smaller piece of land was left unused.

3.  One day in July 2009 the Applicant was told by a neighbor that Mushtaq, the administrative head of Nazim of his home village, was carrying out some construction on his father’s smaller piece of land, and so the Applicant together with some of his friends immediately went there, and when they saw Mushtaq and his men there, the Applicant shouted at them to stop their activities, but some of Mushtaq’s men started firing their pistols at them, and when the Applicant and his friends returned fire, Mushtaq was shot in his leg and fell down.  On seeing this the Applicant and his friends then fled from the scene.

4.  On the following day, fearing that he would be arrested for shooting and injuring Mushtaq, the Applicant fled to Lahore to take shelter at a friend’s place for one month without incident, but as he was still fearful that Mushtaq would take revenge against him, he decided to leave Pakistan for his own safety, and so in August 2009 he departed for     China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected, he sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 16 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

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 Mushtaq upon his return to Pakistan as low due to the absence of any past ill-treatment from him or his men, that in the absence of any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 working experience to move to other area away from his home district in large cities such as Karachi where it would be difficult if not impossible for Mushtaq or his men to locate him.   

7.  The Applicant then 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 17 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted that the Applicant had shot Mushtaq over their land dispute but found that any risk of harm from Mushtaq in revenge was localized in the Applicant’s home village with no evidence of any official involvement that state protection would be available to the Applicant as well as reasonable internal relocation for him to move safely to other parts of Pakistan without any risk of being located by Mushtaq that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 3 August 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; and

(2)     Lack of legal assistance for not providing him with an interpreter to assist him in his appeal including interpreting or translating the documents in his hearing bundle for his appeal before the Board and to translate the Board’s decision to him afterwards so that he could understand the reasons for rejecting his appeal.   

10.  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 367, and Re Zafar Muazam [2018] HKCA 176.

11.  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 find this ground reasonably arguable.

12.  As for his complaint under Ground (2) of not being provided with an interpreter to assist him in his appeal to the Board, it is clear that he was assisted by an interpreter during his appeal hearing when he never raised any issue with interpretation or translation to the Board.  He should also be familiar with most of the documents in his hearing bundle such as his screening records and the Director’s decision which had earlier all been provided to his lawyer from DLS, while his SCF was completed by his lawyer on his own instructions.  As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without any merit.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

14.  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 & Anor [2013] 1 HKC 526.     

15.  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.

16.  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