MUHAMMAD AMJAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1383/2018

[2020] HKCFI 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1383 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 34-year-old national of Pakistan who entered Hong Kong illegallyon 16 August 2011 and was arrested by police on 18 August 2011.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s family which opposed their relationship.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Khurrianwala, Faisalabad, Punjab, Pakistan. After leaving school he worked as a bus driver in his home district.

3.  In December 2010 he came to know his girlfriend and started dating her, but due to their big class differences as his girlfriend came from a wealthy family with her father being the local leader of the political party Pakistan Muslim League (N) (“PML(N)”), while he came from a poor family, they therefore kept their relationship secretly from her family.

4.  However, one day while they were meeting in a park, his girlfriend’s father and other family members appeared and attacked both of them with wooden sticks until some passers-by intervened that the Applicant managed to make his escape, while his girlfriend was taken away by her family.

5.  After he was discharged from hospital for the injuries sustained from the beating,the Applicant did not report the matter to the police but fled to Bahawalpur to take shelter in a friend’s place, during which his family made apologies on his behalf to his girlfriend’s family, and after their apology was accepted by her family, the Applicant felt it was safe to return to his home town, which he did in January 2011.

6.  However, the Applicant still maintained contact with his girlfriend secretly, and one day in May 2011 they decided to meet again in a park, but when the Applicant arrived at the place and saw her brothers coming towards them, he immediately fled from the scene,and while he was running away, he heard some gun shots from behind but was too scared to look back, and instead he kept running as quickly as possible away from the scene.

7.  The Applicant did not return home and instead fled to Bahawalpur to stay ata friend’s place, but when he later heard that his girlfriend had subsequently been murdered by her family by way of honour killing, and that her brothers had been looking for him and fired shots outside his house, he felt that it was no longer safe to remain in Pakistan, and so on 13 July 2011 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he first completed a Torture Claim Form (“TCF”) and later a Supplementary Claim Form (“SCF”), and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 31 July 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 under Article 3 of the Hong Kong Bill of Rights (“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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial for believing that he would be in danger of being killed or harmed by his girlfriend’s family upon his return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that his girlfriend had indeed been killed by her family, that after all these years it is doubtful that his girlfriend’s family would still have any adverse interest in his, that in any event in the absence of any official involvement that state 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 199 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 in Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his girlfriend’s family to locate him.

10.  By a Notice of Further Decision dated 21 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 August 2015, and for which an oral hearing was scheduled on 3 February 2017 before the Board but he failed to appear without any explanation, and the Board decided to proceed to deal with his appeal in his absence and on papers.  On 25 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found that even on the Applicant’s own case that the level of harm from his girlfriend’s family is low, that there is no reliable evidence that they really intended to kill him, that after all these years that they would still have any adverse interest in him, and that with state protection and reasonable internal relocation available within Pakistan that it would not be unduly harsh for the Applicant to relocate safely to relocate to places other than his home district to make a living and to avoid any risk of being located byhis girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds. 

13.  On 13 July 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 legal assistance for not providing him with an interpreter to assist him regarding his claim under BOR 2 risk or his appeal process to the Board;

(3) that the Board adopted a formulistic and biased approach in assessing his claim when it failed to rely on the relevant COI which supported his assertion of the overall condition of the corruption and ineffectiveness of the police in Pakistan and instead chose to accept the information about reforms in respect of the police as indication of positive results in recent years to reject his claim; and

(4) that there were procedural unfairness in the Board unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement,that it acted procedurally unfairly in the manner in dealing with his appeal, that its decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness, and that it failed to meet the greater care and duty owed to self-represented claimant.

14.  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 standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FBv 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.

15.  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.  As suchI do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not find this ground reasonably arguable for his intended application.

16.  As for his complaint under Ground (2) of not being provided with an interpreter, itis clear that his TCF and SCF were completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with interpretation.  In the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or wrongly understood by the Board, and given the straightforward nature of his disputes with his girlfriend’s family, I find this complaint of the Applicant simply speculative and without basis.

17.  Regarding his complaint under Ground (3), in the absence of any particulars or specifics provided by the Applicant as to how the Board may have improperly relied on the relevant COI in assessing his claim, and having examined those COI referred to by the Director and the Board as set out in their decisions, and given the private nature of the dispute between the Applicant and his girlfriend’s family of which he had never sought assistance from the police or the authorities, I do not find any basis or merits in this complaint of the Applicant. 

18.  As for his complaint under Ground (4), again it is a broad and vague assertion of the Applicant without any particulars or specifics or elaborations how the Board had unfairly fettered its discretion or in what way was its decision unfair or irrational.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find this ground reasonably arguable for his intended challenge either.

19.  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.

20.  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.

21.  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.

22.  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