ALI SHAFAQAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 474/2020

[2022] HKCFI 3766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 474 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Pakistan who entered Hong Kong illegally on 1 July 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Muttahida Quami Movement (“MQM”) for refusing to join their party. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Zulfiqar Colony, Waris Pura, Faisalabad, Pakistan. After leaving school he worked as a cell phone salesman, got married and raised a family with 2 children in his home district, and supported the political party Pakistan Tehreek-e-Insaf Party (“PTI”) regularly attended their local activities and rallies during which however he and his fellow PTI supporters frequently came into violent conflicts with MQM supporters when the Applicant on one such occasions was attacked by them and suffered injuries.

3.  On another such confrontation in mid-2014 the Applicant was threatened by those MQM supporters that he would be killed if he refused to leave PTI to join MQM.

4.  Fearing for his safety, the Applicant thereafter fled to Lahore to avoid any further threats from those local MQM supporters, but later when he heard that they were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 23 June 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 March 2018 the Director of Immigration (“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 Ordinance, Cap 383 (“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 found no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by those local MQM supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those MQM people to specifically target the Applicant for being just an ordinary PTI supporter with no official post in the party, that 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 204 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 working experience to move to other area away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for anyone to locate him.

7.  On 12 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 March 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it casted down on the credibility of his claim of fear of harm from those local MQM supporters that caused him to leave his home country for Hong Kong, that there is no reliable evidence or reasons for those MQM supporters to specifically target him given that he was just an ordinary supporter of PTI without any official post in the party, and that reliable COI show that PTI won the 2018 general election and had not engaged in political violence in the country other than some minor incidents while MQM is a Karachi-based secular political party without any strong hold or influence in the Applicant’s home district that it is not accepted that he would not receive the necessary help from his own party or from the local authorities that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 20 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That he was not provided any legal representation for his appeal to the Board which is unfair and unlawful;

(2)  That the Adjudicator failed to consider the Applicant’s claim under torture risk in the assessment of his non-refoulement claim;

(3)  That the Board’s decision was written in English which the Applicant was unable to understand but had not been interpreted or translated to the Applicant that he was unable to understand properly the reasons for dismissing his appeal; and

(4)  That the Adjudicator was biased against the Applicant and made the determination of his appeal based on assumptions without allowing him any opportunity to explain or elaborate on his case that there was no proper basis for rejecting the credibility of his claim.

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 from DLS 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 and with the assistance of an interpreter. In the circumstances 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 Ground (2) that the Board failed to determine his claim under torture risk, this complaint is factually incorrect as it is clear from the decision (see [42] – [58] of decision) that the Board did properly do so (see [42] – [58] of the decision), and hence I do not find any basis for the Applicant’s complaint under this ground of his either.

13.  Regarding his complaint under Ground (3) of not being translated or interpreted of the Board’s decision given his limited English so as to have a better understanding of the reasons for the Board to dismiss his appeal, putting aside the fact that he clearly had had legal assistance for his present application, such a complaint even if true simply cannot form any proper or valid ground for the challenge of the decision.

14.  As for his complaint under Ground (4) that the Board was biased against him without giving him any opportunity to explain or elaborate his claim, the Applicant is again clearly factually incorrect as he did attend an oral hearing on 15 January 2019 before the Board for his appeal during which he was clearly able to make full representation of his claim to the Board with the assistance of an interpreter and without any difficulty (see [34] – [41] of the decision), and in the absence of any particulars or elaboration from the Applicant in support of his such bare assertion, I do not find this ground reasonably arguable for his intended challenge either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse findings on his credibility for the detailed and thorough analysis and reasoning set out in paragraphs 42 – 59 of its decision with the benefit of hearing him in oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality 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 any reasonably arguable basis to challenge the findings of the Board.

17.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  Furthermore, the Applicant recently on 26 September 2022 filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

20.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that he no longer has any problem returning to his home country, I accordingly dismiss 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