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

HCAL 1489/2018

[2020] HKCFI 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1489 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 36-year-old national of Pakistan who entered Hong Kong illegallyin October 2009 and was arrested by police in January 2013 for which he was subsequentlyconvicted and sentenced to prison for 15 months. Upon his release and was referred to the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some local gangsters 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 Khas, Jaranwala, District Faisalabad, Pakistan. After leaving school he worked in his family’s farmland inherited from his father to him and his brother.

3.  In about 2008 some gangsters in his home village approached him and his brother for the transfer of their farmland to them, and when the Applicant refused, they threatened to kill him if he continued to refuse their demand.

4.  After the gangsters left, the Applicant reported the matter to the police, but when there did not appear to be any follow up action taken by the police, and when one week laterthose gangsters returned carrying weapons with them and demanded again for his land, andwhen the Applicant refused, they threatened that they would kill him in order to get his land before they left.

5.  As the gangsters had continued to harass and threaten him, the Applicant decided to leave Pakistan to save his life, and so he departed in October 2009 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form (“NCF”) on 1 March 2017, but after he missed a screening interview due to illness, the Director decided not to arrange another screening interview and instead served on him a list of questions raised of his claim, which he did subsequently answer through his legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 24 April 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 hisabsolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 those local gangsters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no real intention of the gangsters to kill him despite the ample opportunities for them to do so for more than one year prior to his departure, that it was in any event a private dispute over land between them without 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 193 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 Karachi where it would be difficult if not impossible for those local gangsters to locate him.   

8.  On 9 May 2017 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 2 February 2018 before the Board during which he declined to give any further evidence and refused to answer any questions put to him by the adjudicator for the Board.  On 31 May2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found in the absence of the Applicant’s evidence or answers to questions raised of his claim that it was not satisfied that he has established a well-founded fear of any real or substantial risk of harm from those local gangsters upon his return to Pakistan, that it was in any event a private dispute over land with no evidence of any state or official involvement that state/police protection would be available to the Applicant that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 27 July 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;

(2)     lack of legal assistance for not translating or interpreting the documents in the appeal bundle which were all in English for his appeal before the Board; and

(3)     failure on the part of the Director to schedule another screening interview for him after he missed the originally scheduled screening interview due to his sickness which is unfair to him.

11.  For his complaint in Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FBv 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.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, but chose not to testify or to answer any questions during his appeal hearingbefore the Board despite being advised to do so.  As such I do not find anything amiss arisingfrom the lack of legal representation in his appeal process or any basis for his complaint, and I do not find this ground reasonably arguable for his intended challenge.

13.  As for his complaint under Ground (2) of not being provided with translation or interpretation of the documents in his appeal bundle before the Board, it is clear that many of the documents had earlier already been provided to his lawyer while he still had legal representation from DLS, while his NCF was completed on his instructions to his lawyer, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or interpretation.  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.

14.  As for his complaint under Ground (3) that he was not provided any screening interview before the Director, as has been held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances, and in the Applicant’s case, given the nature of his claimed fear of harm from those local gangsters over their land dispute, and the fact that he had provided his answers to the questions raised by the Director of his claim with the assistance of legal representation, and that he never raised any such issue during his appeal hearing before the Board when he in fact also declined to answer any questions from the adjudicator, I do not find any basis or merit in this complaint of his at all.  

15.  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 intheir 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.

16.  The fact is 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.

17.  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.

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