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

HCAL 1957/2018

[2020] HKCFI 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1957 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 25-year-old national of Pakistan who entered Hong Kong illegally on 9 September 2013 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 his former schoolmate or his family over a fight between them as teenagers at school.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Khaipran Wala, Gujrat, Pakistan.  After leaving school he worked in the factory in his home village where he lived with his parents and siblings.

3.  In 2010 while he was still attending secondary school in Gujrat, he befriended a fellow student Khurram from an influential family with his father being a member of the political party Pakistan Peoples Party (“PPP”).

4.  However, in mid-2011 Khurram’s personality changed and became a bully to fellow schoolmates including the Applicant, and on one occasion in January 2013 the two of them broke into an argument which then led to a fist fight for several minutes before being separated by other students.

5.  On the next day the Applicant did not go to school, but when he returned to school the day after, he was told by his fellow students that Khurram’s parents had come looking for him over the incident.  To avoid further confrontation between the Applicant and Khurram, the school changed the Applicant to another class, and as a result he had not had any further encounter with Khurram again.

6.  However, Khurram’s parents kept coming to school looking for the Applicant, and to avoid further trouble, the school therefore arranged to transfer the Applicant to another school in the same area, but one day when Khurram’s parents ran into the Applicant’s father in the street, they threatened to kill the Applicant if they saw him.

7.  As a result the Applicant’s father reported the threats to the local police, but they refused to take any action against the Khurram’s parents, and fearing for the Applicant’s safety, his parents therefore arranged for him to move to Lahore in March 2013 where he stayed without any further incidents, but when he heard that Khurram’s parents were still looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so on 27 August 2013 he departed for China, and from there he later sneaked into Hong Kong and raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 16 October 2017 the Director of Immigration (“the 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”) being violated 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Khurram or his family upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the claimed threats from them were based entirely on hearsays without any independent reliable evidence of any real intension on the part of Khurram or his family to seriously harm or kill the Applicant over a fight at school in particularly after all these years, that in any event it was a private personal dispute between them without any official involvement that state/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 201 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 young man with working experience to move to other area away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for Khurram or his family to locate him.   

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 31 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found most unlikely that Khurram or his parents would set out to kill or otherwise harm the Applicant over something as trivial as a classroom fight between two teenaged students which happened years ago, that it doubted the alleged political influence of Khurram’s father on the local police since his party PPP were no longer in power, and in any event even if there were such a risk that the Applicant could easily avoid by relocating elsewhere within Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for Khurram or his family to locate him that his claim for non-refoulement protection failed on all applicable grounds.     

12.  On 18 September 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 language assistance during the process of his appeal to the Board including translating or interpreting the hearing bundle for use in his appeal before the Board;

(3)     that the Board failed to take account properly or at all of the Applicant’s reason for not seeking help from the police of the threats from Khurram’s family in the determination of his claim; and

(4)     that the Director failed to give proper explanation as to how the balancing exercise worked in his consideration of the relevant COI or his conclusion that certain particular sections of the COI outweigh the others.

13.  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 367, 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 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.  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.

15.  As for his complaint under Ground (2) of not being provided with language assistance in his appeal to the Board including translating or interpreting the documents in his hearing bundle for his appeal, it is clear that he was well familiar with most of the documents in the hearing bundle which were earlier already provided to him while he was still legally represented, while his NCF was 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 translation or any language problem.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding his complaint in Ground (3) about the Board’s doubt over the political influence of Khurram’s father on the local police, on the basis of the facts and the materials before the Board I do not find any fault or error in its such finding of facts.  As such and given the personal nature of the Applicant’s claim even on his own case and the Board’s findings and conclusion on state protection and internal relocation being available to him to avoid any such risk from Khurram’s father, I do not find this ground reasonably arguable for his intended challenge.     

17.  As for his complaint in Ground (4) over the Board’s reliance of the relevant COI in its determination of his claim, again for the reasons of the Board’s findings and conclusions as to the options of state protection and reasonable internal relocation available to the Applicant, I do not find this ground reasonably arguable either.   

18.  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.

19.  In the present case, as already noted above the Applicant has failed to clearly and properly identify any error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and as it has also been established by both of them 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.     

20.  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.

21.  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