ALI ZEESHAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 902/2017

[2018] HKCFI 1453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 902 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 29-year-old national of Pakistan who entered Hong Kong illegally in December 2007 and was arrested by the police on 3 January 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 13 January 2008 on the basis that if he returned to Pakistan he would be harmed or killed by the supporters of the political party Pakistan People’s Party (“PPP”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Sang Loharan, District Mirpur, Azad Kashmir, Pakistan where his parents and six siblings still live.  As his father was a long term supporter and member of the Muslim Conference Party (“MCP”), and with his encouragement the applicant started to support MCP in 2006 at the age of 18.

3.  In 2006 there was an election participated by candidates of both MCP and PPP resulting in frequent clashes between their supporters.  After PPP won the election, some of their supporters came to the applicant’s home when he was out and accused his father of reporting to the police of their votes cheating and beat him severely with wooden sticks, and before they left they also threatened to kill the applicant.

4.  Afterwards the applicant reported the incident to the police but was advised to leave Mirpur for his own safety, so the applicant took shelter at his friend’s home for two months.  Then one day in September 2006 when the applicant ran into the same PPP men who attacked his father, he was beaten by them with wooden sticks until they were restrained by passers-by, and the applicant was subsequently taken to the clinic for treatments to his head and his hands.  After the assault the applicant was advised by his mother to leave Pakistan for his own safety, and so he was arranged to hide in Islamabad for 10 months until 15 November 2007 when he left for China and from there he sneaked into Hong Kong in December 2007 and lodged his torture claim, and subsequently completed his Non-refoulement Claim Form with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 26 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all 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”).

6.  In his decision the Director found that the alleged ill-treatment inflicted on the applicant did not reach the severity to be qualified for a torture claim, that in the absence of evidence of any state or official involvement that state and police 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 young man to move safely to other areas away from his home district such as Karachi.

7.  On 9 March 2015 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 2 February 2016 before the Board, but other than submitting some pictorial reports of terrorist attacks in Pakistan which were unrelated to his claim, the applicant declined to testify or to answer questions at the hearing.  On 20 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the applicant’s account of events in Pakistan unreliable in the absence of any evidence or answers from him which he declined to provide at his oral hearing, and that in any event as both reasonable state protection and internal relocation alternatives would be available to ensure his safe return to Pakistan, his non-refoulement claim failed on all applicable grounds.    

9.  On 25 January 2017 the Director by letter invited the applicant 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”), and in the absence of any response from him the Director on 9 February 2017 again rejected the applicant’s claim on all applicable grounds including BOR 2 risk.

10.  On 30 March 2017 the applicant again appealed to the Board against that decision of the Director, and upon considering the additional facts and representation submitted by the applicant, the Board proceeded to consider the appeal on papers and found that the applicant has failed to establish a case under BOR 2 risk and dismissed his appeal on 10 November 2017. 

11.  On 17 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 set out his grounds for his intended challenge as follows:

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

(2)  lack of language assistance for not providing him with an interpreter during the process of his appeal;

(3)  lack of fair hearing and/or procedural unfairness for failing to provide him with legal or language assistance or another oral hearing for his claim under BOR 2 risk; and

(4)  wrongful exercise of case management power for arranging his second appeal to be determined by the same adjudicator who had earlier dismissed his first appeal and was therefore biased against him and for failing to elaborate how the adjudicator reached his decision that the applicant had not established a case under BOR 2 risk.   

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 given the opportunity to testify and to make further representation in his appeal hearing before the Board but which he declined to do so.  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 an interpreter in the process of his appeal, clearly he was assisted by an interpreter at his oral hearing before the Board but he chose to remain silent throughout.  There is simply no merit at all in this complaint of the applicant.

15.  As for his complaint in ground (3) of not being given a further hearing either before the Director or the Board regarding his claim under BOR 2 risk, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute entitlement to oral hearing, and that it is ultimately a question of fairness looking at the overall circumstances.  Here, in the absence of any response from the applicant to the invitation to submit any additional facts relevant to BOR 2 risk or any request for oral hearing, the Director was in my view perfectly entitled to proceed to consider the applicant’s claim under BOR 2 risk on the facts and materials already presented by the applicant as before without another hearing, and the same is true with the Board as it explained in its second decision of 10 November 2017:

“ 8. The Applicant has been given the opportunity by the Director to provide further materials (although he provided none), and the opportunity to provide the TCAB with materials in the NOA/P. The legal basis of his case is abundantly clear as was before the TCAB then as it is now. I can see neither a need nor the justification to organize yet another oral hearing merely to re-canvass the same case as has already been well ventilated and disposed of before … In today’s case, the issues under BOR 2 Risk can more than adequately be considered and dealt with on paper.”

16.  As for ground (4) in which the applicant complains of having the same adjudicator dealing with his second appeal after having his first appeal dismissed by the same adjudicator who may be biased against him with his second appeal, it is entirely in the Board’s discretion in assigning appeals to adjudicators and it is plainly sensible and practical in most cases for the same adjudicator to hear the second appeal in which there is no systemic unfairness in this practice, and it is for the applicant to demonstrate real bias in his case rather than relying on his own perceived one.  In the circumstances of this case and having considered both decisions of the adjudicator, I do not find any merit in this complaint of the applicant either.

17.  In the premises and having proceeded to consider 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