IQBAL ASIF v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 851/2017

[2018] HKCFI 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 851 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 44-year-old national of Pakistan who entered Hong Kong illegally on 29 June 2011 and was arrested by the police on 21 July 2011.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 23 July 2011 on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of a policeman killed in an incident which involved his brother and/or pursued by the police on suspicion of being involved in his brother’s illegal activities.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Gujerkhan, Rawalpindi, Pakistan where his wife and five children still live.  After leaving school he worked as an embroidery worker and a waiter.  In 2009 the applicant heard that his brother SH was involved in the illegal activities of smuggling alcohol and was under police’s investigation, and as a member of the family the applicant was also under investigation.  One day in 2010 while SH with two of his men were smuggling alcohol from Lahore City to Gujerkhan, they were ambushed by the police and in the ensuing gun battle one of the police officers was shot and killed, while SH had escaped and gone into hiding.

3.  Not wishing to be implicated in the shooting and the resultant police investigation, the applicant first moved away to Mirpur and then to Islamabad, but when he received telephone calls from the brother of the dead police officer threatening to kill him in revenge, and when he heard that the brother came from an influential and powerful family in Pakistan, the applicant decided to leave the country for his own safety, which he did on 26 June 2011 when he flew to China, and from there he sneaked into Hong Kong and subsequently raised a torture claim with the Immigration Department, and subsequently completed his Non-refoulement Claim Form with legal representation from the Duty Lawyer Service.     

4.  By a Notice of Decision dated 8 September 2015 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 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”).

5.  In his decision the Director found on the facts of the applicant’s case that the level of risk of harm upon his return to Pakistan to be low, that in the absence of any reliable evidence of any involvement of the state or police in the threats or of any prosecution by the police as he was able to leave Pakistan without any difficulties that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 experiences to move safely to areas away from his home district such as Mirpur, Islamabad, Dina, Sowawah, or Karachi.    

6.  By a Notice of Further Decision dated 31 October 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 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”).

7.  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, which appeal he filed 16 September 2015, and for which he attended an oral hearing on 30 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found no reliable evidence to support the applicant’s bare assertions of being threatened by the family of the dead police officer and doubted that they would still have any adverse interest in him after all these years or the ability orresources to locate him if he is to relocate to areas away from his home village, while anylegitimate prosecution against him by the police would not entitle him to non-refoulement protection in Hong Kong.

9.  On 6 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 set out his grounds for his intended challenge as follows:

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

(2)  lack of legal assistance for not providing him with an interpreter in the process of his appeal to the Board; and

(3)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

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 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.

12.  As for his complaint under ground (2) of not being provided with an interpreter inthe process of his appeal to the Board, for the same reason in relation to legal representation as above and that in my view it is simply impractical to provide an interpreter to the applicant throughout the process of his appeal to the Board, when he was already assisted by an interpreter at his oral hearing before the Board.  There is simply no merit in this complaint of the applicant.

13.  Regarding his complaint in ground (3) over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Directoror his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is no basis or merit in this ground of the applicant either.

14.  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.

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