Shah Syed Saghir Hussain v. Torture Claims Appeal Board and Another

HCAL 819/2017

[2018] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 819 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 48-year-old Pakistani man who entered Hong Kong illegally on 4 April 2007 until he was arrested by the police on 4 August 2007.  He was subsequently referred to the Immigration Department for investigation and pending which he was released on recognizance on 4 September 2007.  On 6 March 2009 he raised his torture claim with the Immigration Department on the basis that if he is to return to Pakistan, he would be harmed or killed by a group of men from the Muslim League as he is a supporter of their rival political group Pakistani People’s Party (“PPP”).

2.The applicant was born and raised in Village Adowal, Gujrat, Pakistan to a family that has supported PPP for generations including the applicant himself.  After receiving some formal education, he went on to train as a motorcycles mechanic and in 1992 he started an auto workshop repairing motor cycles.  He subsequently got married and has two daughters.

3.In 2001 he was chosen as a service dealer of Dawood Yamaha Ltd and as his business flourished, he was able to participate in the welfare and community service for his home village and became influential, which led to PPP to invite him to act as mediator between the party and the villagers, to which he agreed.

4.One day in 1992, some senior members of the rival political party Pakistan Muslim League (“ML”) approached the applicant to invite him to join their party, but as the applicant has always supported PPP and as ML had used illegal means to get votes during elections, he rejected them and they left.  However, in 2004 he was approached by some younger members who were much more aggressive and even threatened him if he refused to join their party.  Then one day in 2005 while he was riding his motorcycle on the road, those young ML members drove their car menacing in front of him to scare him until he turned into a small lane to escape.

5.At around that time the applicant entered into a business arrangement with a man AIB who owned a motorcycle shop by referring people who came to his shop for repair of their motorcycle to AIB as customers, and for each of them who bought a new motorcycle from AIB he would get a commission.  While AIB is a supporter of ML, it apparently had no effect on their business relationship.

6.One evening in March 2005 several young members of ML came to the applicant’s home with the same demand to join their party but were subsequently pushed away by him.  A few days later when the applicant was returning home from work, he was ambushed by those men near his house and was punched and kicked violently by them even when he ran inside his house, they continued to attack him in the presence of his wife and daughters until his neighbours intervened who then later accompanied him to the police station to report about the incident before going to the hospital for treatment.

7.After the incident senior members of PPP met with those of ML and thereafter things had quieted down and the applicant did not follow up with his police report.  However, in early 2006 at the union council election, the applicant noticed at the polling station of some ML members tempering with the polling process and therefore took photos of them, and when the ML candidate won the election PPP made the complaint to the election committee with the applicant’s photos as evidence, and the committee agreed to investigate the matter.

8.A few days later in the evening while the applicant was walking home from work, he was stopped by several men in the dark with one of them pointing a gun at his head demanding him to hand over his evidence whilst the others started to search him, and when they were unable to find anything in him, they threatened to kill him but when a train approached, they took his phones and wallet and left.  Afterwards the applicant became concerned for the safety of his family and arranged for them to take shelter at his brother-in-law’s place in Jalalpur Jattan.

9.Soon the applicant found that his repair business had deteriorated and he started owing AIB money.  In 2006 they met for discussion when AIB suggested that the applicant should transfer his shop to him and in return he could work for him and that the debts would be forgotten, to which the applicant agreed.  As a result the shop was transferred to AIB and the applicant ceased to be the owner in 2007.

10.One day in March 2007 whilst the applicant was working in the shop, several policemen came to take him to the police station as AIB had made a complaint about the applicant issuing a fraudulent cheque. In the end the applicant was allowed to go after his wife sold some of her jewelry to pay off AIB.

11.On 22 March 2007 the applicant on his way home again ran into the same ML men who had threatened him before, and when he approached his home he heard gun shots from behind towards his house.  As a result the applicant went to hide in one of his friend’s place before taking shelter at his brother-in-law’s home in Jalalpur Jattan.

12.On the following morning his friend came and advised the applicant to leave Pakistan for his own safety.  With money from his friend and his brother-in-law the applicant therefore left for Karachi on the next day and after obtaining his visa for China he departed from Pakistan on 30 March 2007 and arrived in Guangzhou on 31 March 2007, and on 4 April 2007 he entered Hong Kong illegally where he was arrested by the police and subsequently lodged his torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) with the Immigration Department.

13.Upon the implementation of the United Screening Mechanism (“USM”), the applicant completed a Non-refoulement Claim Form (“NCF”) on 19 May 2014 with legal assistance and representation under the Duty Lawyer Service, and underwent screening interviews in November 2014 and January 2015 before the Immigration Officer.

14.By a Notice of Decision dated 27 February 2015 the Director of Immigration (“the Director”) rejected his 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 (“CIDTP”) 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”).

15.In his detailed decision and in applying all the relevant principles and criteria the Director assessed that the level of risk to the applicant from the ML people as low in the circumstances of his case and given the long lapse of time since the election dispute of more than 10 years ago, that there is no evidence to suggest that the state or police were involved in any of the actions of the ML men against him especially when he was free to leave Pakistan and that his wife and children are still living in Pakistan without any harm or incidents, that objective Country of Origin Information (“COI”) show that effective reforms have been on-going in Pakistan with positive results on state and police protection and avenues to the public for justice and relief, and that internal relocation alternatives are available in Pakistan with a large population of 196 million people spread over a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied motorcycle mechanic to return to live and work safely in other parts of Pakistan away from his home district.

16.By a Notice of Further Decision dated 24 May 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 information 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”).

17.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 13 March 2015 and subsequently attended a hearing on 20 November 2015 for directions and an oral hearing on 26 May 2016 before the Board during which he attended in person but apart from producing the originals of certain photographs submitted earlier to the Director, the applicant chose not to give any evidence or to answer questions put to him by the adjudicator for the Board.  On 17 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

18.The adjudicator in the Board’s decision explained that from reading of the papers in this case he found the applicant’s accounts and accompanying documentation in support of his claim contained vagueness, uncertainties, contradictions, apparent unlikelihoods which called for expansion, explanation, elucidating and clarification, and therefore decided that the oral hearing was required for the applicant to do so but which he refused.  In the end the adjudicator gave his reasons in details in the decision for rejecting the applicant’s claims and arrived at the following conclusion:

“ 145. The Applicant’s claims, for the reasons addressed above, particularly paragraphs 112 – 131, are found to be absolutely implausible and incapable of belief. I reject them. Whether they could have been less implausibly presented with oral evidence from the Applicant is unlikely but the fact is no such oral evidence was given.

146. It is incumbent upon the Applicant to satisfy the Board, to the low standard required, that there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to Pakistan.  The state of the material before the Board is such that the Board finds this has not been done.”

19.The applicant on 30 October 2017 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 which can be essentially summarized as follows:

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

(b) lack of language assistance during the process at the Immigration Department especially as to the letter inviting him to submit additional facts relating to BOR 2 risk due to its high technical aspects and his difficulty with the English language that he could not respond in time to deal with the matter before the Director’s further rejection of his claim on 24 May 2017; and

(c) lack of fair hearing as representative of Immigration Department was not required to attending the hearing before the Board without reasonable explanation. 

20.As the applicant also requested for an oral hearing for his leave application, he appeared before me on 19 March 2018 during which he confirmed, with the assistance of an interpreter, these are all his grounds for his intended challenge with no further submission other than those already contained in his affirmation.

21.For his ground (a) based on lack of legal representation at the stage of his appeal to the Board, 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: per Lam VP in Tariq Farhan [2018] HKCA 17, CACV 218/2017.  As in that case the applicant already had the benefit of legal representation in presenting his case to the Director, and given the details provided by him including those documents in the long list under paragraph 156 of the Director’s decision of 27 February 2015 with the assistance of his legal representation at that stage, the applicant had clearly been able to advance his case fully before the Director, which to me explains why he declined to give evidence at the oral hearing before the Board and despite repeated invitation and advice for him to do so by its adjudicator, as he recorded in the Board’s decision as follows:

“ 113. Having read the papers in this case the Board decided that, following the principles set out in ST v Betty Kwan (Supra), an Oral Hearing was required. Firstly a Directions Hearing was held on 20^th November 2015 at 2:30 p.m. This was followed by an Oral Hearing which was held on 26^th May 2016.

114. At the Directions Hearing the Appellant was given a description of the process to be followed leading up to and in the conducting of the Oral Hearing to come. It was explained to the Appellant that at the Oral Hearing he could give evidence, that it was the sensible thing to do and that most Appellants did so and that, by doing so, “at the end you will have said all you want to say”. The Appellant was also told that the issue of Internal Relocation would be addressed. Other practical matters such as collecting and using the Hearing Bundle were also dealt with.

115.   At the Oral Hearing, after a repetition of the process the Hearing would take and after the Applicant had produced the originals of photographs which had earlier been provided in poor quality black and white form, the Applicant declined the Board’s invitation for him to give oral evidence.  The Applicant said he understood that without his oral evidence, the decision on his Appeal, which was by way of a rehearing afresh, would be made on the basis of the materials already held by the Board.  30 minutes or so later, after other procedural matters were deal with and a brief adjournment taken,the issue of giving oral evidence was again taken up with the Applicant who firmly confirmed his earlier declining to give evidence.  He said ‘I have said whatever I wanted to say’.  On that note the Oral Hearing concluded.” 

22.Clearly that indicates to me that the applicant was content with everything he had already said and presented to the Director about his claim which were also all before the Board that he found it unnecessary to make use of the opportunity presented to him at the oral hearing to further advance his case despite the repeated invitations and advice of the Adjudicator for the Board.  I am satisfied that he had had the opportunity to fully advance his case before the Board, and I do not see any merit in his argument based on lack of legal representation.

23.Regarding the complaint of lack of language assistance under ground (b) which he complains he should have been entitled to the service of an interpreter to assist him during the process and to enable him to handle the Director’s invitation for him to submit additional facts relevant to his claim under BOR 2 risk, it is clear as noted above that he had had the assistance of legal representation during the process before the Director up to the first decision during which the applicant must have been satisfied with the language assistance provided to him given the absence of any complaint then either to his legal representation or the Director, whilst thereafter in between the Director’s invitation by letter dated 5 May 2017 for him to submit additional facts regarding BOR 2 risk and the rejection again of the applicant’s claim on 24 May 2017, there is also nothing to suggest that the applicant had ever made any request to the Director for language assistance or interpretation or to the Board up to its decision on 17 October 2017.  

24.It is also noted that the leave application of the applicant and his 8-page supporting affirmation were written in English and with no interpretation clause which indicates that he has access to and is able to seek the assistance he needs and that at the same time he also understands English.  Furthermore, even up to the hearing of his leave application on 19 March 2018 before me, the applicant did not state or outline what additional facts or information regarding BOR 2 risk that he wished to provide.  On the facts of his case I am satisfied that the assessment of BOR 2 risk relevant to his case could effectively be made on the same materials presented on his behalf with the assistance of lawyers, upon which both the Director and the Board did consider his claim under BOR 2 risk, and I do not see any merit in this complaint either.

25.As for the last complaint of the applicant about the Director or his representative not attending his oral hearing before the Board, since his appeal before the Board was a rehearing of his claim and was essentially an opportunity for him to present and advance his case fully before the Board, and even ignoring the fact that there is no such requirement of the Director’s attendance, I fail to see any reason or relevancy why the applicant would want the Director’s attendance or involvement at that stage, as after all it was the Director who had rejected his claim in the first place.  There is simply no basis at all in this ground.

26.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not see any error of law or procedural unfairness in either of their decisions, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 20^th day of April 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