MONIM SAJID BUTT v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 143/2018

[2018] HKCFI 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 143 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents by the Applicant being absent;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally in about January 2014 and was arrested by the police on 1 April 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim with the Department on 29 April 2014 on the basis that if he returned to Pakistan he would be harmed or killed by the land mafia for refusing to sell his land to them.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Gujrat, Pakistan where his father, his wife and two sons still reside in their family house built on a piece of land owned by his father.  After receiving 18 years of education including a Master’s Degree at the University of Punjab in Lahore, he worked as a technician at the SMC University in Gujrat from 2006 up to the time when he left Pakistan.

3.  In about September 2013 three land mafia approached the applicant’s father with a proposal to purchase his land so that they could build a shopping center on it, and when his father refused to sell they left unhappily, but shortly thereafter they returned with more men and with guns to threaten his father, and when the applicant tried to confront them he was hit on the face by those men with the butt of their guns which broke his jaw and some of his teeth before they left after his father had called the police.

4.  After receiving treatment at the hospital, the applicant was advised by his father to stay away from home to avoid further confrontation with those land mafia, but when the land mafia kept making threatening phone calls to demand his father to sell his land to them, and when the local police failed to follow up with any action due to what was asserted to be political influence of the land mafia and their connection with the political party the Pakistan Muslim League (Q) (“PML(Q)”), the applicant was advised by his father to leave Pakistan for his own safety, which he did on 23 December 2013 when he flew to China, and from there he sneaked into Hong Kong in January 2014 and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form on 10 March 2016 with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 5 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 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”).

6.  In his decision the Director found on the facts of the applicant’s case that the land mafia were only after his father’s land and not the applicant and the fact that his father and family are still safely residing in the land are indicative of low risk of harm to the applicant upon his return to Pakistan, that the absence of any evidence of any involvement of the state or police in their threats 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 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 tertiary education and working experience to move to areas away from his home district such as Karachi or Lahore where he can safely live and work without any fear of the land mafia.  

7.  By a Notice of Further Decision dated 21 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any 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”).

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, which appeal he filed on 19 July 2016, and for which an oral hearing was scheduled on 2 May 2017 before the Board but which he failed to attend, and after receiving a letter from him in which the Board found not acceptable his explanation for his absence at the hearing, the Board proceeded to consider his appeal on papers without scheduling for another hearing.  On 19 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found concerns in relation to certain fundamental aspects of the applicant’s claim unresolved in the absence of his testimony due to his absence at the scheduled oral hearing, but the fact that no further incidents have occurred over the past four years show that the actions of the land mafia do not evince any intention to cause either the applicant or his family to suffer prescribed harm, and concluded that the applicant has failed to establish any real risk of harm upon his return to Pakistan and therefore his non-refoulement claim failed on all applicable grounds.  

10.  On 1 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board but in it he did not put forward any grounds for his intended challenge, whereas in his supporting affirmation of the same date he stated the following as the reasons for his application:

“ 5. Duty Lawyer Service did not represent me after the Notice of Decision was issued by the Immigration Department. However, shortly after that, the Immigration Department took their own initiative of determining my case under BOR2. With very limited English, I could barely understand the letter. I was not aware that a reply is required. Hence, I did not respond to the letter, as I thought that the Duty Lawyer Service would continue to provide assistance.

6. While I accept negligence on my part, it did not occur to me that the Immigration Department would determine my case without referring it back to the Duty Lawyer Service as was the case for the rest of my USM grounds.

7. The USM was implemented in Hong Kong in March 2014 following the Court of Final Appeal Judgment in Ubamaka Edward Wilson v Secretary for Security (FACV 15/2011) (‘Ubamaka’).

8. It was mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 (‘Prabakar’) that high standard of fairness should be maintained.  I therefore believe that my case should also be entitled to the same treatment.”   

11.  It therefore appears to me that essentially the applicant’s complaint is that he was not provided any legal representation for his claim under BOR 2 risk before the Director which led to his further decision of 21 March 2017 in rejecting his claim.

12.  For the right to legal representation in torture claim cases, 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.

13.  The applicant already had the benefit of legal representation in presenting his case to the Director at least up to the time of his first decision, and if indeed the applicant had misunderstood that he was still having legal representation when he was subsequently invited by the Director to submit additional facts and representation relevant to BOR 2 risk due to his limited English, of which it is noted that he had received a Master’s Degree at the University of Punjab in Lahore and that he affirmed to his affirmation without requiring interpretation, clearly he was then already in the process of his appeal to the Board without any legal representation or assistance from the Duty Lawyer Service, and therefore could not have been under the misapprehension that the Duty Lawyer Service would be dealing with the Director’s letter on his behalf.    

14.  Furthermore, that letter from the Director, which was dated 2 March 2017, clearly required the applicant to submit his additional facts, if he had any, which may be relevant to BOR 2 risk on or before 16 March 2017, and that if the applicant had thought that the Duty Lawyer Service were still involved, it would have occurred to him that his lawyer would require instructions from him to submit those additional facts which he may have, and hence he should have contacted the Duty Lawyer Service when the time got closer to the deadline imposed by the Director, but which he apparently did not and for which I can see no valid explanation from him.

15.  Be that as it may, if indeed he did have additional facts or representation to submit relevant to BOR 2 risk, he could still have done so in his appeal before the Board in particular at the oral hearing scheduled on 2 May 2017 before the Board but as noted above he failed to attend, and that for whatever reason that he might have for his absence, he could still submit those additional facts to the Board thereafter up to the time of the Board’s decision of 19 January 2018.  In fact, even now in his leave application the hearing of which he again did not appear, the applicant did not submit any additional facts or representation regarding his claim under BOR 2 risk.  In the circumstances it is my judgment that the Director and the Board were perfectly entitled to assess his claim under BOR 2 risk on the facts and materials already presented by him with legal representation, and I do not find any merits in this complaint of the applicant.

16.  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.

17.  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