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

HCAL 1544/2018

[2020] HKCFI 1439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1544 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 50-year-old national of Pakistan who entered Hong Kong illegallyon 16 December 2015 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 paternal uncle over a land dispute.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Manwais, Huzoor Pur, Tehsil Bhalwal,District Sargodha, Pakistan.  After leaving school, he worked as a labourer in construction sites, got married and raised a family of two children in his home village.

3.  Prior to his death his grandfather gave all his land in the village to the Applicant’s uncle, including the family house where the Applicant and his parents used to live in.  Upon the death of the grandfather, the Applicant and his parents continued to reside in the family house and to farm in the farmland.

4.  In about 2009 the Applicant approached his uncle to ask for a share in the farmland so that he and his family could continue to farm there, but when his uncle refused, it led toa heated argument during which his uncle and his sons hit the Applicant with wooden sticks that he lost consciousness, and was later taken to the local clinic for medical treatments to his fractured leg.

5.  The Applicant did not report the assault to the police, but later in about 2013 when he again asked his uncle for his share of the farmland, his uncle refused and threatened that if he persisted with his request, he would be dealt with more seriously than last time, and that he may even be killed.

6.  Afterwards, fearing for his own safety, the Applicant fled to Pindi Bhattian to take shelter in his friend’s place before moving to stay in another friend’s place in Lahore until 2014 when he returned to his home village.

7.  Shortly after his return to his home village, the Applicant met with his uncle who repeated that he would not give him any land but would allow him to farm in his land as before, but when the Applicant refused, his uncle then left angrily.

8.  Fearing that his uncle might harm him again, the Applicant decided to leave Pakistan,which he did on 13 December 2015 when he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which hecompleted a Non-refoulement Claim Form (“NCF”) on 26 July 2017 and attended screeninginterview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 25 August 2017 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 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”).

10.  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 his uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from his uncle or his men, that in any event it was a private family dispute over land between the Applicant and his uncle without any official involvement that state/police protection would be availableto 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 202 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 of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle to locate him.

11.  On 7 September 2017 the Applicant lodged an appeal to the Torture Claims AppealBoard (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 June 2018 before the Board during which he was however reluctant to answer many of the questions raised of his claim by the adjudicator for the Board.  On 23 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found inconsistencies and discrepancies in his account of disputes with his uncle over the farmland which was further undermined by his reluctance to answer questions raised of his claim, and did not accept that he has had any personal experience of being involved in a land dispute with his uncle in Pakistan, or that he has ever had any confrontation or physical altercation with anyone over any disputed land, or that his uncle or any member of his family has ever had any interest in harming or killing the Applicant as claimed, or that he would face any real chance of any harm for any of the reasons he has alleged upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

13.  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 any translation of those documents in the hearing bundle for his appeal before the Board, nor was the Board’s decision interpreted to him thereafter.

14.  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 standardsof fairness laid down in Secretary for Securityv 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 rightto 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.

15.  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.

16.  As for his complaint under Ground (2) of not being provided with a translation of those documents in the hearing bundle for his appeal before the Board, it is clear that many of those documents such as his NCF which was completed on his instructions to his legal representation from DLS, whilst others such as record of his interview have earlier already been provided to him when he still had legal representation, and that he was assisted by aninterpreter at his appeal hearing before the Board during which he never raised any issue oftranslation, and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director or the Board 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.

18.  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 14 – 31 of its decision with the benefit of hearing him albeit with reluctance to answer questions during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision,I do not find any reasonably arguable basis to challenge the finding of the Board.

19.  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.

20.  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.

21.  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