AHMED SHERAZ v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 617/2020

[2022] HKCFI 2098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 617 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 30 July 2008 and was arrested by police on 31 July 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of a cricket player in revenge for the injury caused by the Applicant during a local cricket match. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Chak Khaasa Rajipur, Taniya Wala, Mohallah Massodabad, District Jhelum, Punjab, Pakistan. After leaving school he worked as a motor mechanic in Jhelum, and regularly played cricket matches for his local team.

3.  During one such match in about mid-2008, the Applicant accidentally struck a player from the opposing team by the name of Razaq in the head with the cricket ball that the player fell and lost consciousness, and was subsequently taken to the hospital for medical treatment of his head injury.

4.  After the accident the Applicant heard that Razaq’s family was furious about the incident and had sworn to take revenge against him. A few days later the elder brother of Razaq who was a local gangster came to the Applicant’s home with his followers looking for him, but the Applicant managed to flee from the backdoor to hide in a friend’s place, and then moved to Mirpur Azad Kashmir where he stayed for several days before sneaking back to his home district in Jhelum.   

5.  However, when he later heard that Razaq’s family was still looking for him to take revenge, the Applicant fled to Karachi, but as he felt it was no longer safe to remain in Pakistan, and so on 24 May 2008 he departed for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 19 March 2012 for possession of another person’s identity card for which he was subsequently convicted and sentenced to prison for 12 months.

7.  By a Notice of Decision dated 31 December 2014 the Director of Immigration (“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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.  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 Razaq’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute that it was not accepted that there was any real intention of the Razaq’s family to seriously harm or kill the Applicant over what was just a sporting accident or that they would still have any adverse interest in him after all these years since he left the country, that in the absence of any official involvement that state/police protection would be available to the Applicant if resorted to upon his return to Pakistan, and that reliable and 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 experience to move to other area away from his home district in large cities such as Lahore where it would be difficult if not impossible for Razaq’s family to locate him.

9.  On 13 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 11 December 2015, and in the absence of any explanation for his non-attendance or any response or any request for any further oral hearing, the Board proceeded to deal with his appeal in his absence and on paper, and on 14 March 2017 the Board dismissed his appeal and confirmed the decision of the Director.

10.  In its decision the Board did not take any issue with the Applicant’s claim of dispute with Razaq’s family over the cricket match accident, but found no evidence of any real intention of the Razaq’s family to seriously harm or kill the Applicant, and that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district in other large cities without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.     

11.  Meanwhile on 31 March 2017 the Director on his own initiative invited the Applicant to submit any 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 by a Notice of Further Decision dated 5 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to Pakistan.

12.  On 29 June 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was found to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a notice of decision dated 24 January 2020 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it was some 5 weeks late, that the delay was substantial and inordinate, and that there was no good reason from the Applicant for his such delay, nor was there any special circumstances which would make it unjust not to allow the late filing of his Notice of Appeal.

13.  On 14 April 2020 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 repeated his claim as before and complained essentially of not being provided with any legal representation for his BOR 2 Claim before the Director or for his appeals before the Board, and given the fact that he does not read or understand English that he suffered unfair prejudices and/or procedural unfairness in the process of his claims before the Director for his BOR 2 Claim as well as his appeals before the Board.

14.  For a complaint of not being provided legal representation for non-refoulement claimants in their appeals 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.

15.  In the present case, the Applicant already had the benefit of legal representation from DLS in presenting his claim to the Director under all the other applicable grounds including Torture Risk, BOR 3 Risk and Persecution Risk, and as he chose not to attend the oral hearing before the Board in his subsequent appeal against that decision of the Director, I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board as regard those applicable grounds.

16.  The same can also be said about his BOR2 Claim before the Director when he failed to submit any additional facts in support of such claim, and given the findings by both the Director and the Board in their earlier decisions that the Applicant’s claim based on the factual basis of his own case at the highest was a private personal dispute without any official involvement, the Applicant’s claim in fact simply did not engage the BOR 2 ground in its limited scope, and hence this complaint of lack of legal representation for his BOR 2 Claim or for his subsequent appeal to the Board would not and could not assist or advance his intended challenge of the Board’s decision.

17.  While the Board in its second decision to refuse the late filing of the Applicant’s appeal against the Director’s Further Decision regarding his BOR 2 Claim did not appear to have taken account of the merits of his appeal as part of the relevant matters of fact within the Board’s knowledge under Section 37ZT (2)(b) of the Ordinance as held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, the fact is that the Board did already in its earlier decision as noted above make factual findings regarding the Applicant’s other claims that state protection and internal relocation would be available to the Applicant to negate any risk of those proscribed harms that the Applicant may face upon his return to Pakistan, similarly any argument of such default on the part of the Board will not in my view assist or advance the Applicant’s case regarding his BOR 2 Claim.         

18.  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.

19.  As noted above, the fact is that it has been correctly established by both the Director and the Board in their earlier 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.               

20.  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.  Furthermore, the Applicant recently on 11 May 2022 filed an affirmation requesting to withdraw his application as he has already compromised his dispute with his enemy and hence he wants to return to his home country.

22.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that he has already resolved his problem that he wants to return to Pakistan, I accordingly dismiss 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