MEHMOOD NASIR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 904/2017

[2018] HKCFI 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 904 of 2017

 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 54-year-old national of Pakistan who entered Hong Kong illegally and was arrested by the police on 6 July 2010 and was subsequently referred to the Immigration Department for investigation.  On 10 July 2010 he lodged a torture claim which was subsequently rejected by the Immigration Department (“the Department”), as well as his appeal to the Torture Claims Appeal Board (“the Board”).  On 11 June 2013 he lodged his non-refoulement claim with the Department on the basis that if he returned to Pakistan he would be harmed or killed by his neighbor over a land dispute.  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, Punjab, Pakistan where his father and some of his siblings still live.  His father owns a piece of land in Jalalpur Jattan which he and his brothers stood to inherit, but one day in 2002 his neighbor KS who engaged in property business wanted to buy the land from his father, and when his father refused, KS cursed and insulted him.  On the next day one of the applicant’s brothers with some friends took revenge by shooting KS with a gun and injured his legs.  The brother then went into hiding after KS reported the assault to the police of which he also accused the applicant and other members of his family for being involved in the assault.  As a result the police launched an investigation against the applicant and his family, and for which the applicant subsequently made a complaint to the local Ombudsmen.

3.  Thereafter KS continued to harass the applicant’s family by making all kinds of false complaints against them to the police, and in 2006 he even falsely accused the applicant of murdering his uncle for which the applicant was arrested and detained by the police for 10 months, during which he heard from the police that his brother had been killed for resisting arrest after being located by the police.

4.  Later in 2007 after the applicant was able to make bail and was released, KS again made a false complaint to the police that he had come to his home to try to shoot him with a gun.  As a result the applicant was arrested and detained by the police until he was eleased by a judge on bail.

5.  For the next two years KS continued to harass and threaten the applicant and his family to sell the land to him, and on two occasions when he ran into the applicant in the market, he threatened to kill him and even had his body guard hit him with the butt of a pistol during one of such incidents.  To avoid KS’s threats the remaining brother of the applicant emigrated to Saudi Arabia in 2009, and upon his father’s advice that he should also leave Pakistan for his own safety, the applicant therefore left Pakistan on 12 May 2010 for Mainland China and from there he sneaked into Hong Kong on 4 July 2010 where he was arrested by the police and subsequently lodged his torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).

6.  On 18 July 2011 his torture claim was rejected by the Director of Immigration (“the Director”), against which he appealed to the Board which was dismissed by the Board on 19 August 2011, and on 11 June 2013 he lodged a non-refoulement claim with the assistance of legal representation under the Duty Lawyer Service.

7.  By a Notice of Decision dated 24 September 2015 the Director rejected his claim on then applicable grounds being risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

8.  In his decision the Director accepted the applicant’s account of his dispute with his neighbor KS but found that KS’s actions against him were merely to exert pressure on him to agree to sell the land to him, but given that the dispute started back in 2002 and that it has since his arrival in Hong Kong that the land has been sold by his father albeit to someone else, it is doubtful that KS would still want to kill the applicant despite all those opportunities for him to do so before he left Pakistan, that it was a private dispute without any involvement of the state or the police and hence state protection would be available to the applicant if resorted to upon his return to Pakistan, that internal relocation alternatives are available in Pakistan with a large population of 199 million people spread over a vast territory of more than 796,000 square kilometers that KS would not have the resources or ability to locate him, and that it would not be unduly harsh for the applicant to relocate to other cities away from his home district such as Islamabad where he can live and work safely free of any threats from KS. 

9.  By a Notice of Further Decision dated 7 July 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”).

10.  By then the applicant was in the process of appealing to the Board against the earlier decision of the Director, which appeal he filed on 2 October 2015 and for which he attended a total of three hearings between 12 September 2016 and 20 October 2017 before the Board.  On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of eth Director.

11.  In its decision the Board agreed that given that KS had had the opportunity to carry out his death threats against the applicant as early as 2002 but did not up to 2010 when the applicant departed Pakistan, and given that the land has since been sold and there has been no information since 2014 of KS still pursuing the applicant, it assessed that the asserted risk of harm from KS is unlikely to materialize upon his return to Pakistan, with state protection available as well as internal relocation to other areas of Pakistan where the applicant would be out of the reach of KS. 

12.  Nevertheless on 17 November 2017 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 provided three grounds for his intended challenge which can be summarized as follows:

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

 (2) wrongful exercise of case management power on the part of the Director for improper reliance of objective COI in disregarding the inefficiency of sate protection in Pakistan; and

 (3) lack of communication among authorities resulting in failing to ensure his receipt of the letter from the Department inviting him to submit additional facts relevant to BOR 2 risk. 

13.  For the first ground of the applicant that he was not provided any legal representation in his appeal to 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. 

14.  The applicant already had the benefit of legal representation in presenting his case to the Director, and attended three oral hearings before the Board in person during which he was able to make submissions and answer questions put to him from the adjudicator for the Board without any difficulty.  Even now in his leave application before me including an oral hearing during which again he was able to address the court regarding his claim, but still he did not state or outline what further information or argument that he wished to make but was unable to do so before the Board, and I do not see anything amiss arising from the non-availability of legal representation in the process before the Board.

15.  As for the applicant’s complaint under ground (2) of the Director’s improper reliance of COI in disregarding the inefficiency of state protection in Pakistan, in the absence of any particulars or specifics from the applicant, it is not clear what improper reliance of COI that the applicant is accusing the Director of in his assessment of the efficiency of state protection, and an examination of those COI listed in his decision does not reveal anything amiss in the Director’s assessment, which include those which appear to corroborate the applicant’s concerns over police corruption, as well as those which show positive actions and on-going reforms taken by the Pakistani government to improve efficiency of both the state and the police to protect the public, and in his balancing exercise the Director was certainly entitled to arrive at the assessment as he did in his decision, and I do not see any merit in this complaint of the applicant.

16.  As for ground (3), it seems that the applicant’s complaint is that he did not receive the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk and was therefore unable to make any representation regarding that claim.  Assuming that it is true that he never received that letter from the Director and only found out about it from the Director’s further decision of 7 July 2017 when he was already in the process of his appeal to the Board, and if indeed he had additional facts or representation to make regarding his claim under BOR 2 risk, he had had the opportunity to do so at the two additional oral hearings before the Board on 30 August 2017 and 20 October 2017 both of which he did attend and was able to address the Board.  

17.  In fact, as noted above even now in his leave application for judicial review including attending an oral hearing before me, the applicant did not state what additional facts or representation that he wished to submit regarding BOR 2 risk, and on the facts of his case I am satisfied that the assessment of BOR 2 risk relevant to his claim could effectively be made by the Board on the same materials presented on his behalf with the assistance of legal representation earlier to the Director, and I do not find any merit in this complaint of the applicant either.

18.  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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  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