ALI KARAMAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1031/2018

[2019] HKCFI 2422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1031 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 48-year-old national of Pakistan who entered Hong Kong illegally on 10 May 2014 and was arrested by police on 17 May 2014.  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 his brother over their business dispute and/or by his suppliers for failing to pay for their supplied goods.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dhaman, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he ran a grocery store in Attock in partnership with his brother in which he was responsible for running the store while his brother would travel to source their products, and they would share their profit equally without any problems.

3.  However, one day in 2011 his brother started to accuse the Applicant of stealing money from their shop as he was not happy with the little profit made from their business,which led to serious disputes between them until about July 2013 when they had another quarrel over their business which led to a fight during which his brother punched and kicked him and snatched the keys to the shop from the Applicant and threatened to sell the shop.

4.  As a result of the assault, the Applicant went to receive medical treatment at the local clinic, and then made a report to the police, but they treated it as a family dispute and just turned the Applicant away.  Afterwards, when he returned to the shop, he found that it was closed and locked.

5.  A few days later when the Applicant heard that his brother had already sold the shop, he approached his brother to demand for his share of the sale proceeds, but was refused when his brother insisted that he had kept his share as compensation for the money he believed stolen by the Applicant over the years, and threatened the Applicant that if he insisted in claiming for his share, he would kill him.

6.  Sometime thereafter the Applicant started to receive angry phone calls from the shop suppliers demanding for payments for the goods supplied to his shop on credit, and when the Applicant explained that his brother had sold the shop without paying him anything,the suppliers threatened that if he still failed to settle their bills, they would kill him.

7.  As a result of the threats made against him by his brother and the suppliers, the Applicant decided that it was no longer safe to remain in Pakistan, and so in September 2013 he departed for China, and from there he later sneaked into Hong Kong in May 2014,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 17 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 4 February 2016 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 assessed the level of risk of harm from his brother or his suppliers upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problems with them were private monetary disputes without 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 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 of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for his brother or his suppliers to locate him. 

10.  By a Notice of Further Decision dated 25 November 2016 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 16 February 2016, and for which he attended two oral hearings on 1 December 2016 and 16 January 2017 before the Board during which he however declined to give any further evidence after confirming that the materials in the hearing bundle as true.  On 24 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted the Applicant’s account of his monetary disputes with his brother and his suppliers but found that even on his own case that the alleged ill-treatments which were mainly verbal threats had not attained the minimum level of severity due to the low frequency, duration and severity of past treatments, that in the absence of any official involvement that state/police protection would be available to him upon his return to Pakistan that his non-refoulement claim for protection failed on all applicable grounds. 

13.  On 6 June 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 or translation of the Board’s decision to enable him to understand the reasons of the decision;

 (3) failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for wrongly relying on COI in his assessment of state protection and the current situation in Pakistan;

 (4) that the hearing bundle was served on him only shortly before his appeal hearing before the Board without any translation of any of the documents in the bundle; and

 (5) that the Board erred in finding that the ill-treatment received by him from his dispute with his brother did not attain the minimum level of severity but without taking into account the level of his mental suffering of being tortured so badly. 

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 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.

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.  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.

16.  As for his complaint under Ground (2) of not being provided with a translation of the Board’s decision, which by itself cannot be accepted as a valid ground of complaint against the Board’s decision, and is simply not arguable for his intended application. 

17.  Regarding his Ground (3), it is clearly incorrect for the Applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, as the Director clearly did in paragraphs 5 – 6 of his Notice of Further Decision explain the reasons for rejecting the Applicant’s claim under BOR 2 risk, and on the facts of his own case his claim clearly does not engage BOR 2 risk at all.  As such there is simply no basis for this complaint of the Applicant.

18.  As for his complaint under Ground (4) that the hearing bundle for his appeal was given to him only shortly before his appeal hearing and without any translation of the documents in English, even if it was indeed the case, he never raised any issue with it during his oral hearings before the Board when he in fact declined to testify, and that in any event he should be well familiar with most of the documents such as his NCF which was prepared by his lawyer on his own instructions, while the Director’s decision would have already been explained to him by his lawyer while he was still legally represented by DLS. In the premises I do not find anything amiss arising from the hearing bundle being provided to him for his appeal before the Board, and that this complaint is not reasonably arguable.

19.  As for Ground (5) of the Applicant’s complaint that the Board failed to take into account the mental suffering suffered by him from the threats from his brother and the suppliers, upon a careful examination of its decision, it is plain to me that the Board did already take into account all the relevant matters for the detailed analysis and reasoning as set out in its decision, and I do not find this ground reasonably arguable for his intended application. 

20.  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.

21.  The fact is that it has been established by the Director in his decision 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, 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.

22.  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.

23.  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