SAGHEER UMAIR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 906/2017

[2018] HKCFI 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 906 of 2017

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 30-year-old national of Pakistan who entered Hong Kong illegally on 19 June 2008 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged his torture claim on 28 June 2008 with the Department on the basis that if he returned to Pakistan he would be harmed or killed by the family of his former girlfriend and wrongfully persecuted by the police for a false murder case against him.  He has since been released on recognizance pending determination of his claim. 

2.  The applicant was born and raised in Mohalla Pura, Neekapura, Sialkot City, Punjab, Pakistan.  After leaving school he took up a computer design job in a company in his home district.  In 2005 he started a relationship with his former schoolmate AL whose father was a wealthy and influential businessman in Sialkot City and its former mayor with strong political connection.

3.  In mid-2006 AL’s father expressed his disapproval to the applicant’s father about the relationship and wanted the applicant to stop seeing his daughter.  However, when the applicant persisted with his relationship with AL, one of her brothers SH threatened him with serious consequences if he did not stop seeing AL.  Still the applicant refused until one day in February 2008 when another brother JM confronted the applicant on the street and assaulted him with several other men until they were restrained by other passers-by, and before they left JM threatened that he would kill him if he continued with his relationship with AL.

4.  Several days later JM confronted the applicant again on the street and attacked him with a knife and cut him on his arm before fleeing from the scene.  Later on the same day the applicant was told by his friend that the police were looking for him as AL’s family had made a false claim of murder against him. The applicant therefore took shelter at his friend’s place in Gujranwala and ceased contact with AL, but several months later when he heard that some unknown men were looking for him in Gujranwala, he was advised by his friend to leave Pakistan for his own safety, and therefore departed on 16 June 2008 for Mainland China, and from Shenzhen he sneaked into Hong Kong on 19 June 2008 when he was arrested and subsequently lodged his torture claim, and for which he later submitted a Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service. 

5.  By a Notice of Decision dated 9 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). risk of violation of his absolute and non-derogable rights under section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 including right to life under Article 2 (“BOR 2 risk”) and right of not to be subjected to torture or cruel, inhuman or degrading treatment or punishment under Article 3 (“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 found the applicant’s account of fear of harm from AL’s family or wrongful persecution from the police merely his bare assertion unsupported by any reliable evidence, that any threats from his former girlfriend’s family would not persist after he has had no further contact with her all these years, that it is doubtful that he was indeed wanted by the police when he was able to leave Pakistan without any problem, and in the absence of any evidence of any involvement of the state or police in any of the threats from AL’s family that state protection would be available to the applicant upon his return to Pakistan, and that objective Country of Origin Information (“COI”) show that internal relocation alternatives are available in areas away from his home district such as Karachi where he can live and work free of any threats from AL’s family. 

7.  On 22 May 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 before the Board on 3 October 2017 when he adopted the information from the hearing bundle in his NCF, records of his screening interview and his representation in his appeal as his evidence, and answered questions from the adjudicator for the Board before making his submission to the Board.  On 26 October 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In the decision of the Board and upon hearing him in evidence the adjudicator found multiple material inconsistencies and implausibilities in the applicant’s evidence as explained in details in paragraphs 28 – 39 of the decision, and concluded that he is not a credible witness as he has merely fabricated his claims just to create a basis to apply for non-refoulement, and hence his claim has failed on all applicable grounds.

9.  On 17 November 2017 the applicant field 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 set out his grounds for his intended challenge which can essentially be summarized as follows: 

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

(2) lack of language assistance or interpreter to assist him in the process of his claim; and

(3) lack of fair hearing or procedural unfairness that no reason was given for the non-attendance of the Director at the oral hearing of his appeal before the Board.   

10.  For the first ground in which the applicant complains of no legal representation to assist him in his appeal before the Board, the Court of Appeal has 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: see 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 also able to testify in his appeal before the Board and to answer questions put to him by the adjudicator for the Board without any difficulty.  Even now in his leave application for judicial review including an oral hearing before me, the applicant did not state or outline any further representation which he wished to make but unable to before the Board, and I do not see anything amiss arising from the non-availability of legal representation in the process before the Board. 

12.  Regarding his complaint under ground (2) of no language assistance or interpreter being provided to him in the process so that “there was 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” as stated in paragraph 8 of his affirmation, even putting aside the facts that his claim was based on his NCF completed by him with legal representation and that he was assisted by interpreter in both his process before the Director and at his oral hearing before the Board, his complaint is simply speculative unsupported by any basis, and that it is totally unrealistic and impractical for him to be provided by paid interpreter throughout the process of his appeal to the Board.  I find this ground wholly without merit.   

13.  As for his last ground in which he complains of no reason being given for the non-attendance of the Director at the oral hearing of his appeal before the Board, there is simply no rule for such an requirement, and I do not see how the applicant could have been prejudiced by the Director’s absence in his appeal which is after all a rehearing of his claim by the Board, and there is no basis at all in this ground of the applicant.   

14.  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.

15.  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