HUSSAIN SADAM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 820/2017

[2018] HKCFI 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 820 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 applicant is a 27-year-old Pakistani man who entered Hong Kong illegally and was arrested by the police on 8 August 2015 when he then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by two members AL and SJ of his rival political party Pakistan People’s Party (“PPP”) or persecuted by the police due to a false claim made against him by AL and SJ.  On 9 August 2015 he was referred to the Immigration Department for investigation.  He was released on recognizance on 1 September 2015.

2.  The applicant was born and raised in Lahore, Punjabi, Pakistan where his father ran a construction business with the assistance of two of the applicant’s elder brothers.  All the members of the family including the applicant were supporters of the political party Pakistan Muslim League (N) (“PML(N)”) and regularly voted in their favour during elections when the applicant would help out in their campaigns as a volunteer.

3.  One day in late 2009 while the applicant was standing outside the PML(N) office, several members including AL and SJ of rival PPP approached him and invited him to join their party, to which the applicant refused.  This happened a few times thereafter without any incidents until one afternoon in March or April 2010 when AL and SJ with some other men again approached the applicant and a friend FZ in front of the PML(N) office with the same invitation, and on this occasion when the applicant refused, the PPP men became violent and attacked both the applicant and his friend with fists and the butt of a pistol carried by AL until they were intervened by passers-by, but before they left AL and SJ threatened to kill the applicant and his friend next time when they saw them.  They then called the police and falsely reported that they had been attacked by the applicant.  Before the police arrived, the applicant and his friend left the scene.

4.  As a result of the attack the applicant suffered a serious cut to his left little finger with swelling and bruises all over his body and had to receive treatment in the hospital, but while he was there his father called him that the police had come to his home looking for him, and advised him to stay away for the time being, so he did not return home until that evening after the police had left.

5.  After that attack the applicant stayed at home most of the time to avoid running into AL or SJ or the police, but one afternoon in mid-2010 he was asked by his friend FZ to go out for a ride on his motor cycle, and while they were on the road they ran into AL and SJ also on their motor cycles who started to give chase after them firing shots from behind.  FZ who also had a pistol fired back but was shot in his leg.  After the incident the applicant was so frightened that he went into hiding at his uncle’s place in Faisalabad which was two and a half hours ride from Lahore.

6.  Whilst hiding in Faisalabad the applicant was informed by his parents that AL and SJ had made another false claim to the police that he had shot at them with a pistol and that the police were looking for him, and that he should stay away as PPP was then the ruling party with huge influence over the police.  As a result the applicant left Pakistan to stay with another uncle in Dubai for the next five years during which he had returned twice to Pakistan to visit his family who would travel to Faisalabad to meet him to avoid being seen by AL or SJ or the police.

7.  In March 2015 the applicant decided to return to Pakistan to stay at his uncle’s place in Faisalabad, but as he still remained fearful of AL and SJ as well as the police, and with financial assistance from his family, he left Pakistan on 3 August 2015 for China, and from there he sneaked into Hong Kong on 8 August 2015 and subsequently raised his non-refoulement claim with the Immigration Department with legal assistance under the Duty Lawyer Service.

8.  By a Notice of Decision dated 31 May 2017 the Director rejected his 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), risk to any other absolute or non-derogable rights including right to life under Article 2 of HKBOR (“BOR 2 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”).

9.  In applying the relevant principles and criteria, and on the basis of the evidence and materials provided by the applicant and his legal representative, the Director found that the low intensity and frequency of ill-treatment from AL or SJ and the police plus the long lapse of time since the last incident are indicative of small risk of future harm to the applicant upon his return to Pakistan, that state protection is available to him in the absence of any reliable evidence that he was still wanted by the police and the fact that he had been able to leave Pakistan without any problem, with objective Country of Origin Information (“COI”) showing on-going reforms in Pakistan to monitor police conduct and to improve their effectiveness, and that internal relocation alternatives are available in other parts of Pakistan with a large population of more than 200 million spread over vast territory of 796,000 square kilometers that it would virtually impossible for AL or SJ to locate him, and that it would not be unduly harsh for the applicant as an able-bodied young man to relocate to other cities away from his hometown such as Faisalabad, Islamabad or Karachi where he can live and work safely without fear of any risk from AL or SJ.

10.  On 13 June 2017 the applicant appealed to the Torture Claims Appeal Board (“the Board”) against that decision, but his appeal was dismissed on 8 September 2017 by the Board which also confirmed the Director’s decision.

11.  The Board dealt with the appeal on paper without oral hearing which the adjudicator for the Board decided unnecessary, and found that the dispute AL and SJ had with him was a private one rather than political persecution against him, and that in the absence of any evidence to suggest that either of them could have any influence or ability to locate him in the whole of Pakistan, the applicant can without undue hardship relocate to other cities in Pakistan and earn a living there to avoid AL or SJ.

12.  On 30 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and in his 9-page supporting affirmation of the same date he provided the following grounds for his intended challenge:

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

 (b) lack of language assistance with no proper translation of his Non-refoulement Claim Form (“NCF”) provided to him;

 (c) being selective in their reliance of COI when considering the availability of state protection to him; and

 (d) lack of oral hearing for him to present his case before the Board.

13.  For his first ground of not being provided legal representation in his appeal before the Board, it is noted that he already had had the benefit of legal representation in presenting his case to the Director, but has provided no particulars as to what additional information or material that he could have put forward to the Board but unable to do so due to lack of legal representation.

14.  Furthermore, as stated by the Court of Appeal in Balwinder Ram [2018] HKCA 171,CACV 278/2017, neither the high standards 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: per Lam VP.

15.  Even at this stage up to the oral hearing requested by him for his application now before me, the applicant failed to state or clarify what information regarding BOR 2 or BOR 3 or persecution risks that he wished to provide other than those already presented to the Director or the Board.  I do not find anything amiss arising from lack of legal representation in his appeal before the Board, nor do I see any merit in this argument of his in his application.

16.  As for his complain of lack of language assistance with no translation of his NCF provided for him under ground (b), it is clear that he was then legally represented under the Duty Lawyer Service and could have asked for such service either from his lawyer or failing which from the Director, whilst his complaint that there was therefore “no means for me to find out if the interpreter has been translating my basis of claim properly and could have potentially led to injustice” is entirely speculative, unrealistic and impractical.  Accordingly and on the facts of the case presented by the applicant, I do not find anything amiss arising from any problem relating to interpretation in the process or any merit in this complaint of his.

17.  For ground (c) there is simply no particulars or specifics provided by the applicant to justify his complain about the Director being selective in his reliance of COI in the consideration of the availability of state protection. It is clear that the Director did consider both the COI that corroborate the applicant’s concerns about police corruptions in Pakistan and those that show on-going reforms by the government to monitor and improve police efficiency. In fact the passage quoted by the applicant in paragraph 10 of his supporting affirmation demonstrates just that and that the Director did take a well-balanced approach in his reliance of the COI in the consideration of state protection available to the applicant which is certainly not selective as asserted by him.

18.  Regarding the last complain under ground (d) of not being given an oral hearing before the Board, it was clearly stated by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 that there is no absolute entitlement to oral hearing, and that it is ultimately a question of fairness in the circumstances of each case, as Cheung CJHC explained in paragraph 26 of the judgment:

“ … there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

19.  In the present case there is no question that the applicant had attended a screening interview with legal representation before the Director with the opportunity to fully present his claim, and when his appeal came before the Board, the Adjudicator in deciding whether or not to call for an oral hearing did remind himself of the principle set out in ST v Betty Kwan above, as he carefully explained in his decision under “Paper Review”:

“ 16. There is no absolute right to an oral hearing. I have in the first place to consider, and have considered whether to order an oral hearing or a paper review. In arriving at this decision, and in the decision generally, I have considered the papers before me, including the Country of Origin Information (‘COI’) listed in the Appendix to the Notice of Decision.

17. Basically, a high standard of fairness is required in dealing with torture claims and indeed with the other claims concerned here. While a hearing is not mandatory it should only be dispensed with where the necessary standard of fairness can still be maintained. I am guided by the lengthy exposition of principle set out by Cheung CJHC in ST v Betty Kwan & Ors, CACV 115/2013 at paragraph 20 – 54.

18. With particular reference to the relevant paragraphs in ST, I have considered:

(a) whether there is anything missing from the Appellant’s case which might be brought out at an oral hearing;

(b) whether there is any point of fact or law which might be better brought out;

(c) whether there is any authority, for or against the Appellant, that should be addressed;

(d) whether there is any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the Appellant should have the chance to address the point;

(e) whether there is any general advantage in holding an oral hearing, even though this might occasion extra trouble and expenses; and

(f) whether, in the name of overall fairness, the Appellant might have anything useful to contribute by way of being heard.

In each case, the answer is in the negative.”

20.  It is therefore clear to me that in his consideration and assessment of the applicant’s claim of his fear of the risk of future harm from AL or SJ upon his return to Pakistan, the Adjudicator did not take issue with his case about his dispute with AL or SJ which he accepted as claimed but found to be a private dispute and not on account of race, religion, nationality or politics, something which he was entitled to on the facts before him and when he rejected such claim under BOR 2 and 3 risks and persecution risk.

21.  Even now and despite filing a 9-page affirmation and appearing in an oral hearing before me in his leave application, the applicant still failed to state or outline what information or argument that he wished to provide or put forward but was unable to do so during the process before the Board.  On the facts of the case and that the applicant had had the opportunity to present and advance his case fully before the Director and the Board, I do not find anything amiss or any unfairness arising from the lack of oral hearing in the process before the Board.

22.  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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

23.  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 therefore 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