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

HCAL 1542/2018

[2020] HKCFI 1225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1542 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 14 May 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his elder brother over their land dispute.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Sargodha, Pakistan and later moved with his family to Faisalabad where his parents still live.  After leaving school the Applicant continued to live with his parents and worked as a salesman in Faisalabad.

3.  His father owned a piece of land near their family home in Faisalabad which was later transferred to the Applicant and his elder brother in equal share, of which his brother later sold his half share in 2010 and subsequently spent all the proceeds.

4.  In 2013 the value of the Applicant’s share of the land rose after it was included in the town planning scheme of Faisalabad, and when his brother heard about it, he tried to persuade the Applicant to transfer the land to him so that he could run a business on it and share with the Applicant the business profits, but when the Applicant refused, his brother turned hostile and threatened to take the land away by force from the Applicant.

5.  One evening in January 2014 his brother came with several men to the Applicant’s home to demand him to immediate sign over the land to him, and when the Applicant refused, his brother and his men proceeded to beat him until his parents intervened.

6.  After the incident the Applicant did not report the matter to the police as his brother had political connections with the ruling political party Pakistan Muslim League (N) (“PML(N)”), but to avoid any further harassments, he left home for Islamabad where he was able to continue to work in the branch office of his employer and to reside in their provided living quarter.

7.  One evening in February 2014 while he was on the way home from work, he was shot at by several men in masks but managed to flee from the scene and ran back to his residence without harm.  Afterwards he suspected that those men were sent by his brother to threaten him, but again he did not report the matter to the police.

8.  However, when he informed his parents of the incident, he was advised to leave Pakistan to save his life, and so on 1 May 2014 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 1 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 30 March 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, 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”).

10.  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 his brother or his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of his brother to seriously harm or kill him other than putting pressure on him to transfer the land to him, that in any event it was a private family dispute over land  without any official involvement that state 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 199 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 young adult with working experience to move to other area in Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for his brother or his men to locate him. 

11.  On 7 April 2016 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 31 March 2017 before the Board during which he gave oral evidence and answered questions raised of his claim by the adjudicator for the Board.  On 25 August 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found large number of inconsistencies and discrepancies in the Applicant’s evidence that his claim was rendered implausible and unreliable, and in any event on his own case that it was a land dispute between him and his brother without any official involvement that state protection as well as reasonable internal relocation would be available for the Applicant to move to other area of Pakistan away from his home district in large cities without any risk of being located by his brother that his claim for non-refoulement protection failed on all the applicable grounds. 

13.  On 8 September 2017 the Applicant filed his Form 86 under HCAL 602/2017 for leave to apply for judicial review of the Board’s decision, and on 13 April 2018 his leave application was refused by Hon Campbell-Moffat J upon finding no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no reasonably arguable basis upon which he could found a claim for judicial review. 

14.  Meanwhile on 16 June 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which he may consider relevant to his non-refoulement claim based on any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

15.  On 29 June 2017 the Applicant submitted further representation claiming that since his departure from Pakistan, his brother had occupied his land and made false charges to the police that the Applicant had stolen money from him, and that his life would still be in danger if refouled to Pakistan.    

16.  By a Notice of Further Decision dated 15 November 2017 the Director again rejected the Applicant claim including BOR 2 risk upon finding no further reason for his brother to harm or kill him after having taken his land, while those first information reports produced by the Applicant all appeared to refer to incidents between him and third parties in the past which had nothing to do with his brother or their land dispute and were not accepted as reliable evidence in support of his claim, and that with state protection and reasonable internal relocation available for the Applicant to safely return to Pakistan away from his home district in some large cities without any risk of being located by his brother that his claim for non-refoulement protection again failed on the applicable ground.    

17.  On 27 November 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he again attended an oral hearing on 4 May 2018 before the Board during which he gave further evidence and answered questions put to him by the same adjudicator as before regarding his BOR 2 risk.  On 27 July 2018 his appeal was dismissed by the Board which also confirmed the Further Decision of the Director.

18.  In this decision the Board again found the discrepancies in the Applicant’s evidence too numerous and impossible to reconcile to render it unreliable that it is incapable of supporting a claim under BOR 2 risk or that he would face a real risk or danger against his life should he be refouled to Pakistan, and that in any event with state protection available that his claim for non-refoulement protection again failed under BOR 2 risk.

19.  On 3 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the further 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;

(2) lack of language assistance in providing an interpreter to assist him regarding his BOR 2 risk; and

(3) that the Board’s Decision was never interpreted or translated to him to enable him to fully understand the reasons for rejecting his case.  

20.  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.

21.  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.  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.

22.  As for his complaint under Ground (2) of not being provided with an interpreter to assist him regarding his BOR 2 risk, the Applicant clearly had legal assistance when he submitted his written representation to the Director regarding his BOR 2 risk, as well as his Notice of Appeal to the Board with grounds set out properly and in details, and in his appeal hearing before the Board he was again able to give evidence and to make representation with the assistance of an interpreter during which he never raised any issue of language problem or difficulty to the Board.  Even now in his leave application before me, he never raised any issue about any language problem in his appeal before the Board, nor did he advance any further argument or representation which he was unable to do in his appeal to the Board due to any language problem.  As such and in the circumstances I do not find any basis or merit in this complaint of the Applicant.  

23.  Regarding his Ground (3) of not being interpreted or translated the Board’s Decision so that he could fully understand the reasons for rejecting his BOR 2 claim, clearly this cannot be accepted as a valid ground to challenge the Board’s decision, nor is it reasonably arguable for his intended application. 

24.  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.

25.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 30 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, and that on the facts of his claim and in the light of the scope and threshold of a BOR 2 claim where there is simply no room for engaging the BOR 2 ground, I do not find any arguable basis to challenge the finding of the Board.

26.  Furthermore, 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.     

27.  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.

28.  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