Ahmed Intizar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL163/2017
[2018] HKCFI 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 163 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who claimed to have entered Hong Kong illegally on 31 October 2013 only to be arrested on the same day by the police.  The applicant lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 18 November 2015 and 29 December 2016.  He then lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his petition/appeal on 20 February 2017.  The applicant filed a notice of application for leave to apply for judicial review on 28 April 2017 and requested an oral hearing which was set down on 24 October 2017.

2.A notice of hearing dated 24 August 2017 was sent to the applicant at the address supplied by him in his application by ordinary and registered post. Neither letter was returned by the post office.  The applicant was absent on the date of the hearing.  Being satisfied that the address was correct and the address supplied by the applicant, I proceeded to consider the applicant’s application on the papers.

3.The basis of the applicant’s claim was his fear that he would be harmed or killed if refouled by his paternal uncle Suleman and his son because the applicant had refused to sell his 50% share of the family land to Suleman.  His uncle now wanted revenge.  The Director and the adjudicator of the TCAB set out in detail in their decisions the applicant’s evidence and claim therefore I will only summarise it here.

4.The applicant was born in Attock, Punjab, Pakistan.  He was the eldest son, married and working as a driver for many years.  His father died and left him 50% of the family land.  The other 50% had been inherited by his uncle Suleman.  Suleman had once offered to buy the applicant’s 50% but he refused to sell because the offer price was very low.  In 2007, Suleman forcibly took over the applicant’s 50% share, forcing the applicant to call the police.  However, although the police did speak to his uncle, they did not take any action or file a proper complaint and thereafter the applicant’s land remained illegally occupied by his uncle.

5.The applicant then actively sought out a buyer and in 2011 sold it to a powerful and influential man called Aslam who knew about the situation.  When Suleman found out he and his son physically assaulted the applicant; slapping and punching him in front of his mother.  The applicant did not report this assault to the police because he thought they would do nothing to help.  The next morning Suleman again approached the applicant’s home and told his mother that he would kill the applicant when he saw him.  The applicant’s mother suggested he leave.  The applicant did leave home but would secretly visit once a month and nothing happened until late July 2013.

6.One evening in late July 2013, the applicant bumped into Suleman and his son in the street and they threatened to kill him.  His uncle took out a gun and the applicant ran away immediately.  The applicant heard a gunshot from behind whilst he was running. He was not injured during the incident.  He did not report this incident to the police.  The following day the applicant applied for a China Visa to leave Pakistan because he feared for his life.  The applicant left Pakistan for China in early August 2013.  However, he could not find work there so he returned to work as a driver in Pakistan in different places and cities other than his home area.

7.As he still felt his life was in danger, he decided to leave Pakistan again having heard that Hong Kong was a safe place to seek protection.  He left again in October 2013 to travel to mainland China before sneaking into Hong Kong illegally.

8.The Director and the adjudicator analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.The Director considered the applicant’s claim, evidence, Country of Origin (“COI”) material and found the level of risk of harm from his uncle if he were to be refouled to Pakistan was low.  According to his own evidence, there was no incident where he suffered any physical harm or actual injury.  This is indicative of a small future risk of harm if refouled.  The Director found there to be State protection available which meant any risk was further lowered or negated.  He also found internal relocation a viable option without undue hardship.  He set out and described the COI material he relied upon.

10.As a result of his careful assessment, the Director when he applied his findings to the descriptions of BOR 2 and BOR 3 and what was required to be proved to invoke, in particular the protection of BOR 3, was satisfied there was no risk of the applicant’s rights under those Articles being violated upon his return to Pakistan.

11.The Director applied his findings to the definition of persecution and found the applicant’s claim and fear arose from a purely private dispute.  His fear did not arise on account of either his race, religion, nationality, membership of a particular group or political opinion.  His persecution risk claim failed.

12.Bearing the definition of torture under section 37U(1) of Cap 115 in mind, there was no severe pain or suffering, physically or mentally, inflicted upon the applicant by anyone within the definition of that section.  The Director gave cogent reasons for rejecting the claim under this applicable ground; the torture risk claim failed.

13.The adjudicator of the TCAB treated the appeal/petition as a rehearing. The adjudicator set out the law, legal principles and relevant authorities he relied on correctly.  He conducted an oral hearing and the applicant elected to answer questions.  The adjudicator analysed the applicant’s evidence having accepted it and came to the same conclusions as the Director.  He confirmed the decision of the Director.

Leave to apply for judicial review

14.The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice; and

(2) the lack of language assistance given to him/inability to read Immigration Department letter/procedural unfairness.

15.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

16.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.

17.The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.  As the applicant was absent, I was unable to confirm that he did approach the duty lawyer scheme for assistance and that they did decline to continue to offer assistance. It may be the case that he did not ask for assistance.

18.The second ground is a complaint that the applicant had no language assistance with his appeal and his reply to the Immigration Department with regard to their invitation to submit further information relating to his BOR 2 risk claim.  There were no further particulars.  The submission is the applicant should be entitled to the services of an interpreter provided by the government during this process.  As the applicant was absent, I was unable to establish any further particulars.  Without more, this sweeping submission is of no assistance to this complaint.  There is no merit in it nor is it reasonably arguable.

19.Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for him to understand which meant he did not have a fair chance to provide further information leading to the rejection of his BOR 2 risk by the Director on 29 December 2016.  He also suggests that he missed the deadline but there is no mention of a complaint by him of either of these issues to the adjudicator of the TCAB.  In that case, there is no merit in this ground.

Conclusion

20.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave is refused.

Dated 26^th day of January 2018.

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