FAHIM FIZA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1040/2017

[2018] HKCFI 1960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1040 of 2017

 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 1^st applicant (“A1”) is the mother of 2^nd and 3^rd applicants (“A2” and “A3”) who are both minors and all are nationals of Pakistan who entered Hong Kong illegally on 17 August 2015, and their surrender to the Immigration Department on 20 August 2015, they lodged a non-refoulement claim on the basis that if they returned to Pakistan they would be harmed or killed by the creditors of A1’s husband for his failure to repay his loan. They have since been released on recognizance pending the determination of their claim. 

2.  A1 was born and raised in Lahore, Pakistan where she married her husband in 2005and with whom she gave birth to A2 and A3.  Her husband who was also a Pakistan national came to work in Hong Kong in the mid-1990s and has since become a Hong Kong resident.

3.  After the marriage A1 and the children lived with her husband’s family in Lahore whilst her husband would make regular remittance from Hong Kong to support them and also to visit them in Pakistan from time to time.

4.  In 2014 her husband opened a shop in Hong Kong selling electronic goods and borrowed a total sum of HK$1.6 million from two businessmen in Pakistan.  However, when her husband had to close down his shop in 2015 due to poor business and was unable to repay his loan, his creditors one day in May 2015 came to the applicants’ home in Lahore with some gangsters, but as A1 did not answer the door the creditors thought she was not at home and left after a while.

5.  In July 2015 while her husband was visiting the applicants in their home in Lahore, his creditors again appeared with some gangsters at the door, and when A1 failed to answer the door the creditors then left, but as her husband felt that it was not safe for A1 and the children to remain in Pakistan, he arranged for them to leave Pakistan with him for Hong Kong, but on their way to the airport they were stopped by several gangsters of his creditors who pointed a gun at them and took their passports and bags, but on seeing a police vehicle approaching the gangsters dropped the bags and fled, and when the police failed to take any further action due to insufficient evidence to connect the gangsters to the creditors, the applicants went on their way to the airport where they flew off on 12 August 2015 for China, and from there they sneaked into Hong Kong on 17 August 2015 and subsequently lodged their non-refoulement claim, for which they completed a Non-refoulement Claim Form (“NCF”) on 7 September 2016 with legal representation from the Duty Lawyer Service (“DLS”). 

6.  By a Notice of Decision dated 9 February 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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 found the absence or low intensity and frequency of ill-treatment from the creditors or their gangsters indicative of a low future risk of harm to the applicants upon their return to Pakistan, that it was a private and personal monetary dispute between A1’s husband and his creditors that state or police protection would be available to the applicants 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 200 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicants to move safely to other areas away from their home district such as Karachi or Islamabad where it would be unlikely for the creditors to waste their resources to locate them.  

8.  On 22 February 2017 the applicants filed their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 15 September 2017 before the Board during which A1 gave evidence and answered questions from the adjudicator for the Board.  On 20 October 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the threats from the creditors a localized one that in the absence of any state involvement that state or police protection would be available to the applicants, and that it would not be unreasonable for them to relocate to other areas in Pakistan such as Karachi or Islamabad. 

10.  On 8 December 2017 A1 filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she set out her grounds for her intended challenge as follows:

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

 (2) lack of legal assistance for not providing her with any translation of her NCF to enable her to find out if the interpreter had translated the basis of her claim properly.   

11.  At the oral hearing of her leave application before me A1 brought along A2 and A3 and confirmed that her application was in fact also made on their behalves and that they should be added to her Form 86, that they be allowed to attend the hearing as her joint applicants, and that she be allowed to make submissions on their behalves, to which I granted leave to her request including the amendment of her Form 86 to include A2 and A3 accordingly.  I shall next proceed to consider their grounds for their intended challenge.   

12.  For their complaint in ground (1) of not being provided legal representation in their 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 applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in their appeal hearing before the Board and to answer questions from the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

14.  As for their complaint under ground (2) of not being provided with a translation of the NCF, it is clear that their NCF was completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of their claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merit.

15.  The fact is that once it has been established by both the Director and the Board in their decisions with reliable and objective COI that it is not unreasonable or unsafe for the applicants to relocate to another part of Pakistan, I am unable to find any justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

16.  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 applicants’ claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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