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

HCAL 891/2018

[2019] HKCFI 2546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 891 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 37-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 and surrendered to the Immigration Department on 2 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain Shia Muslims in the local area of his home village.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised to a Sunni Muslim family in Village Kharian Wala, Tehsil & District Gujrat, Punjab, Pakistan where he taught Quran in a school in the neighbouring Village Chaley Sharif.

3.  One day in 2015 when he was participating in a procession with other teachers and students of his school marching from Village Chaley Sharif to his home village for a religious gathering, and when they were passing through a congregation hall for Shia Muslims, they were attacked by a group of Shia Muslims that many of his fellow Sunni Muslims were injured with one of them later died from the injury, but the Applicant managed to escape from the scene unharmed.

4.  After the incident the Sunni Muslims made a report to the police, but when the Applicant did not notice any action taken by the police, he became concerned for his own safety and took shelter at his in-laws’ home in Phalia for one month without incidents before returning to his home village.

5.  About one week after his return, while the Applicant was sitting ina local restaurant in the market, he was attacked by the same group of Shia Muslims with wooden sticks that he suffered a fracture to his left elbow until some villagers intervened and brought him to the hospital for medical treatments.

6.  After his discharge from the hospital, the Applicant reported the attack to the police,but again when no action was taken, he became fearful for his safety and took shelter at his in-laws’ home in Phalia, but when he heard that those Shia Muslims were looking for him everywhere, he then fled to his friend’s place in Lahore where he was advised to leave Pakistan to seek protection elsewhere, and so on 31 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim, forwhich he completed a Non-refoulement Claim Form and attended screening interview beforethe Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 11 October 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”).

8.  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 Shias upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, 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 204 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 Lahore or Islamabad where it would be difficult if not impossible for those Shias in his home village to locate him.

9.  On 23 October 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 16 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found on the basis of the Applicant’s case that there was no reliable evidence that he was specifically targeted by those Shia Muslims in his home village or that they had any real intention to seriously harm or kill him that it did not consider that he would face a high risk of being harmed should he return to Pakistan, and that in any event that state/police protection as well as reasonable internal relocation would be available for him to move safely to other places in Pakistan away from any threats from those Shia Muslims that his non-refoulement claim failed on all applicable grounds.

11.  On 21 May 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) that he was not given legal representation for his appeal before the Board;

 (2) that he was not provided language assistance for his claim and appeal including interpreting and translating to him of the Board’s decision;

 (3) that the Director and the Board failed to consider and assess his claim carefully and thoroughly; and

 (4) that the Director failed to properly consider the relevant COI in order to reach a balanced view of state protection in assessing the Applicant’s his claim.   

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 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.

13.  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.

14.  As for his complaint under Ground (2) of not being provided with language assistance including a translation of the Board’s decision, it is clear that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with any language problem, and in the absence of any particulars or specifics to show that the basis of his claim might have been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15.  Regarding his complaint under Ground (3) that his claim had not been carefully or thoroughly considered or assessed by the Director or the Board, the Applicant did not provide any particulars or specifics or elaboration of how it was so, and having considered their decisions with rigorous examination and anxious scrutiny, I do not find any basis or merits in this complaint of the Applicant.

16.  As for his complaint under Ground (4) that the Director failed to properly consider the relevant COI in order to form a balanced view on state protection in Pakistan, having examined those COI referred to in paragraphs 20 – 24 of the Director’s decision as well as those considered by the Board, in which both did consider the situations of corruptions and inefficiency of the Pakistani police as well as the on-going reforms undertaken by the government to monitor the conduct of the police and to improve their effectiveness, I find that indeed they did takea properly balanced view in their assessment of state protection in Pakistan, and that in the premises there is no basis in this complaint of the Applicant either.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and 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 present case, in the absence of any error of law or procedural unfairness in the decision of the Director or the Board being clearly and properly demonstrated shown by the Applicant, I do not find any reasonably arguable basis to challenge their findings. The fact is that it has been established by both the Director and the Board 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.

19.  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.

20.  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