SHAH QADEER HUSSAIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 686/2018

[2020] HKCFI 2218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 686 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 45-year-old national of Pakistan who last entered Hong Kong illegally in October 2015 and surrendered to the Immigration Department on 27 October 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of the victim killed by the vehicle driven by him in a traffic accident.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Chautra District, Tehsil Jhelum, Punjab, Pakistan.  After leaving school he worked as a factory worker and then as a driver.

3.  One day in August 2007 while he was driving his vehicle from Gujarat to Jehlum, his vehicle knocked down a man on the road, and when he saw the victim lying on the road unconscious, he panicked and fled from the scene to stay in a friend’s place in Lahore, and when he heard from his father that the victim had died from his injuries and that his family were looking for him threatening to kill him in revenge, he departed Pakistan in September 2007 for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim which was later taken as a non-refoulement claim for protection, but in October 2014 he was told by his father that the victim’s family were willing to negotiate a settlement with him, and so he withdrew his claim and was repatriated to Pakistan.

4.  However, upon his return to his home village, some men tried to grab him but he managed to escape, and when he suspected that they were sent by the victim’s family and that the proposal for negotiation was just to trick him to return to Pakistan, he again fled to Lahore to take shelter in his friend’s place, and when he heard that the victim’s family were looking for him everywhere, he decided that it was not safe to remain in Pakistan, and so on 8 October 2015 he departed for China, and from there he sneaked into Hong Kong and again raised his non-refoulement claim for protection, for which he completed a second Non-refoulement Claim Form on 5 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 21 July 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 Ordinance, Cap 383 (“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 assessed the level of risk of harm from the victim’s family upon his return to as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in the absence of 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 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 working experience to move to other area away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for the victim’s family to locate him.   

7.  By a Notice of Further decision dated 26 July 2017 the Director again rejected the Applicant’s claim in the absence of any further or additional facts from him 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”).

8.  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 4 August 2016, and for which he attended an oral hearing on 14 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found inconsistencies, discrepancies and omissions in the Applicant’s evidence about the alleged traffic accident with significant differences between those given to the Director and to the Board which severely undermined the credibility of his claim, and in the absence of any reliable evidence of any direct threats made to him by the alleged victim’s family other than hearsay and speculations that it concluded that the Applicant had fabricated his claim to create a basis for non-refoulement protection which failed on all applicable grounds.     

10.  On 20 April 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; and

     (2)     lack of legal assistance in explaining or translating the Board’s decision to him so that he can understand the reasons for rejecting his case.   

11.  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.

12.  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.

13.  As for his complaint under Ground (2) of not being explained or provided with a translation of the Board’s decision so that he could better understand the reasons for rejecting his case, it cannot per se be a proper ground to challenge the Board’s decision, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.  

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law 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 finding of the Board. 

16.  Furthermore, 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.     

17.  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.

18.  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