SAMAD TARIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 30/2018

[2019] HKCFI 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 30 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:

1.  The applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 25 January 2008 and was arrested by police on 22 May 2008. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by two men over certain religious disputes with them.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Jalalpur Jattan Tehsil and District Gujrat, province Punjab, Pakistan to a Muslim family.  After leaving school he assisted his father in his business and went to the mosque in his home village to pray almost every day where he met two men MI and AQ with whom he would discuss religious matters from time to time. 

3.  One day in early 2007 during their discussion at the mosque, MI and AQ accused the applicant of blasphemy and threatened to kill him.  Thereafter every time when the applicant met them in the mosque, they would continue to make threats against him, and that one day in February 2007 when he ran into the two of them on the street, MI pulled out a pistol and pointed at the applicant who then turned around and ran when he heard a shot fired from behind but did not hit him.

4.  After that incident the applicant became fearful for his life but did not make any report to the police as he did not think they would handle religious disputes, and instead he fled from his home village to take shelter at various places of his relatives in Islamabad, Karachi and Rawalpindi where he stayed without any incident, and although he had since not seen or heard anything from MI or AQ he was still fearful for his life, and as he did not want to keep hiding he therefore decided to leave Pakistan, which he did in September 2007 for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 11 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 17 January 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”) 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from MI or AQ, that it is doubtful after all these years that they would still have any adverse interest in him, 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 201 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 away from his home district such as Islamabad, Karachi or Rawalpindi all of which he had stayed without incidents prior to his departure of Pakistan and where it would be difficult if not impossible for MI or AQ to locate him.

7.  On 26 January 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, for which he attended an oral hearing on 2 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the applicant not a witness of truth and that he has fabricated claims in relationship to the enmity developed between him and the two men at the mosque for the reasons and analysis set out in paragraphs 96 – 120 of its decision, that even if there were disputes between them that it was not satisfied that the behavior of those two men suggests any real intention of harming the applicant, that the applicant is not of any adverse interest to anyone in his village or anywhere else in Pakistan, and that even if it is wrong about its conclusion it found that he could relocate within Pakistan such as Islamabad, Rawalpindi and Karachi where he had lived before without any incidents, and concluded that there is not a real risk that he would face any of the proscribed forms of harm should he return to Pakistan.

9.  On 5 January 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 language assistance for his appeal before the Board; and

(3)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.

10.  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 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.

11.  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.

12.  As for his complaint under ground (2) of not being provided with language assistance in his appeal to the Board, as it was a rehearing of his claim as before when as noted above he already had legal representation during the process before the Director, and that he was assisted by an interpreter during his appeal hearing before the Board when he never raised any issue over interpretation of the basis of his claim which was uncomplicated and straightforward, nor did he seek any assistance form the adjudicator for further time.  As such I do not find any merit in this complaint of the applicant.

13.  As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

14.  The fact is that it has been established by both the Director and the Board in their decisions 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.

15.  In the premises and having proceeded to consider 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.

16.  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