ZAFAR IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2644/2018

[2021] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2644 of 2018

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 the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 January 2018 (the “Notice”), the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 13 November 2018 (the “Decision”) and his record of screening interview on 15 January 2018.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].  For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  The record of screening interview is a transcript of the Applicant’s answers to the questions raised by the immigration officer during the interview.  It is not a decision of any administrative body.  It is not reviewable by judicial review. 

3.  The Applicant is a Pakistani national.  He sneaked into Hong Kong from the Mainland on 4 January 2015.  He was arrested by the police and referred to the Immigration Department.  On 5 January 2015, he applied for a non-refoulement protection claiming that he will be harmed or killed if returned to Pakistan because he is a witness to a murder.

4.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice of Decision dated 19 January 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 13 November 2018.  

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.  The Applicant said he is a member of the Jatt clan which is involved in constant fights against the Raja clan.  In 2013, he witnessed the Raja clan killing a member of the Jatt clan who was the PRO President of Azad Kashmir.  Someone informed the police and a Raja member was arrested.  He was summonsed to testify in court.  He did not testify because he was threatened by the Raja clan.  On the other hand, he was pressurised by the Jatt clan to testify threatening that he would be killed if he did not.  He did not seek police protection because he believed the police were not helpful.  Hence, he fled to Hong Kong.

The finding of the Board

7.  The Board accepted the Applicant’s evidence and was satisfied that there is a real and substantial risk that he would face harm in his home area from people who wish to prevent him from testifying or from others who will be angry if he does not testify.  But, on the evidence, the Board was not satisfied that the risk falls within any of the four applicable grounds under the USM.

8.  The Persecution Risk ground requires that the harm feared is motivated by or more of the reasons under the 1951 Convention Relating to the Status of Refugees, namely, race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”), and the Applicant must be unable, or unwilling because of his fear to avail himself of the protection of his country.  However, the Applicant’s feared harm arose from the fact that he is a potential witness in a murder trial and not from one of the five Convention reasons.   Furthermore, the agents of the harm are not the state agents but private individuals.  Unless the state is unable to offer protection, a claimant is not entitled to non-refoulement protection.  On the Country of Origin Information (“COI”) available, the Board was satisfied that despite problems in the Pakistani government, state protection was available but it was the Applicant’s decision not to seek protection on the assumption that it was not available.  The Board was also satisfied that internal relocation is a possible option to avoid the risk.  For these reasons, the Board found the Applicant not entitled to protection under this ground.

9.  In respect of the Torture Risk ground, the Board was not satisfied that the harm involved meet the definition of torture in that it would not be inflicted by or at the instigation of a public official or person acting in an official capacity or with his consent or acquiescence.  Further, the Board considered internal relocation a possible option to avoid the risk.

10.  In respect of the BOR 3 Risk ground, the Board accepted that there is a real and substantial risk that the Applicant would face some harm in his home area but declined to make a finding whether the harm would amount to torture, cruelty, inhuman, degrading treatment and punishment as to qualify for protection.  The Board assumed that if it is, it would be reasonable and not unduly harsh to require the Applicant to return to another part of Pakistan to avoid the harm.

11.  In respect of the BOR 2 Risk ground, the Board was not satisfied that there are substantial or strong grounds to believe that the Applicant will suffer the death penalty, arbitrary deprivation of life or genocide at the hands of his enemies because the risk of such harm is confined to his home area and could be avoided by internal relocation.

Grounds for judicial review

12.  The Applicant lodged a ten-page affirmation in support of his application.  The essence of his complaint is that he disagrees with the finding of the Director in the Notice and the finding of the Board in the Decision.

13.  His first complaint is lack of legal and language assistance.  He said that he was not given legal assistance in preparation for the appeal before the Board and at the hearing of the appeal.  He also complained that the majority of the documents in the appeal bundle were in English and without translation.  He said that due to lack of understanding on what will happen in the hearing, he was confused in terms of what was happening. 

14.  In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether he was prejudice by the lack of legal representation.

16.  The Applicant had the benefit of legal representation in presenting his case to the Director.  He was not legally represented before the Board.  However, all the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  The Applicant suffered no prejudice due to lack of legal assistance in preparing for the appeal and lack of legal representation before the Board.

17.  The Applicant had the benefit of the interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the non-refoulement claim form prepared by him and the record of the screening interview which he attended.  The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  It is not open to him to complain about procedural unfairness when he did not do the minimum to pursue his interest.

18.  The Notice of the Director was issued to him on 19 January 2018.  It was not until 14 September 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing nearly eight months to seek assistance from among his own circle and ethnic community.  Indeed, he had access to interpretation services as reflected in his affirmation and Notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board. 

19.  His complaint about lack of translation of the Decision is frivolous.  The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.  He may suffer some inconvenience, but not prejudice, in the preparation of his application for leave to apply for judicial review.

20.  The prejudice suffered by the Applicant as result of lack of legal and language assistance is more apparent than real.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

21.  As for his complaint about the COI being not officially recognised and made up of hearsay, it is incorrect.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Information and Guidance – Pakistan: Background information, including actors of protection, and internal relocation issued by the United Kingdom on 6 October 2014 and June 2017; Country Reports on Human Rights Practices for 2016 – Pakistan published by the United States Department of State; and The World Factbook – Pakistan, issued by United States Central Intelligence Agency.  In fact, the Board relied on the COI in accepting his evidence.  Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI.  The weight to be given to conflicting information in the COI is a finding of fact within the province of the Board.  The Court considered this ground totally groundless.

22.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[13]. 

23.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision satisfied the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.

Conclusion

24.  For the above reasons, leave to apply for judicial review is refused.

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

[1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] CACV 2/2018, (unreported) 23 March 2018

[7] [2018] HKCA 14

[8] [2018] HKCA 15

[9] [2018] HKCA 17

[10] [2018] HKCA 37

[11] (2004) 7 HKCFAR 187

[12] HCAL 51 of 2007, (unreported) 5 December 2008

[13] [2018] HKCA 524 at para 14(1)