Kayani Muhammad Saleem v. Torture Claims Appeal Board and Another

HCAL 867/2017

[2018] HKCFI 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 867 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 37-year-old Pakistani man who entered Hong Kong illegally on or around 16 October 2009 and was arrested by the police on 9 December 2009.  After he was referred to the Immigration Department for investigation, he raised his torture claim on 11 December 2009 on the basis that if he returned to Pakistan he would be harmed or killed by certain members of his rival political party Pakistan People’s Party (“PPP”).  He was subsequently released on recognizance pending determination of his claim.

2.The applicant was born and raised in Rawalpindi, Pakistan where his parents and two younger brothers still live.  Upon leaving secondary school the applicant operated his own grocery store and in 2003 became an active supporter of the political party Pakistan Muslim League (Q) (“PML(Q)”) and had assisted in their local election campaigns.

3.In 2007 some members of PPP held campaign activities in Rawalpindi during which the applicant had a run-in with one of them known as RS and beat him up with a wooden stick.  The PPP men then left but at the end they won the election and PPP became the ruling party for the next five years.  A few months after the election one night the applicant found that his grocery store had burnt down and he suspected that it was carried out by the PPP men in revenge.

4.Although the applicant did report the matter to the police, they did not follow up with any investigation and the applicant suspected that because PPP was the ruling party with members in the National Assembly.  However, one night in 2008 or 2009 the applicant was taken to the police station where he was detained and beaten for being a member of PML(Q) until his family intervened and he was eventually released.  Afterwards the applicant took shelter at his aunt’s place in Bakra Mandi, Dhoke Syed for one and a half month to stay away from trouble.

5.Upon returning home the applicant again became involved in a fight between members of his PML(Q) and the PPP people, and for which he was arrested and detained by the police during which he was again beaten badly by the same group of policemen, and was only released two weeks later upon his family’s intervention.

6.After recovered from his injuries the applicant was advised by his family to leave Pakistan for his own safety and with their financial assistance he left Pakistan on 7 October 2009 for China, and from there he sneaked into Hong Kong on 16 October 2009 until his surrender to the police on 9 December 2009 and subsequently raised his torture claim with the Immigration Department.  On 10 August 2015 he submitted his Non-refoulement Claim Form (“NCF”) with legal assistance under the Duty Lawyer Service.

7.By a Notice of Decision dated 1 September 2016 his claim was rejected by the Director of Immigration (“the Director”) 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”).

8.In his detailed decision the Director applied the relevant principle and criteria in his assessments of the applicant’s claim under those grounds and found that even if his claim was genuine the level of risk of him being harmed by those PPP members upon his return to Pakistan to be low given the low intensity and infrequency of past ill-treatments from them, that in the absence of any reliable evidence other than the applicant’s own assertions of the police being involved there is no suggestion that they still have any adverse interest in him who was free to leave Pakistan without any difficulty, and that reliable and objective Country of Origin Information (“COI”) show that internal relocation alternatives are available and reasonable for the applicant as an able-bodied man with working experience to return to Pakistan with a large population of 199 million people spread over a vast territory of more than 796,000 square kilometers where he can live and work in cities away from his home town such as Karachi free from any threats from those PPP members.

9.By a Notice of Further Decision dated 20 June 2017 the Director again rejected the applicant’s claim in the absence of any further or additional facts or materials from him despite an earlier invitation and extension of time for him to do so 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”).

10.By then the applicant was 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 14 September 2016, and for which he attended an oral hearing on 28 June 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 October 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

11.In its decision the Board found that nothing the applicant said or presented in evidence can be given any credence whatsoever, that he is not a witness of truth, and that he has presented a learned account rather than one which describes events he has genuinely experienced, for which it gave detailed reasons from paragraphs 28 to 44 for making such findings, and concluded that his appeal failed on all applicable grounds under torture risk, BOR 2 and 3 risks and persecution risk. 

12.On 10 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 provided the grounds for his intended challenge:

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

(b) lack of language assistance to provide him with any translation of his NCF so that he could find out if his basis of claim had been properly translated by the interpreter; and

(c) lack of communication among authorities as he is uncertain as to whether his BOR 2 claim has been assessed by the Director and that he has not received any letter from the Director. 

13.For the applicant’s complain under ground (a) that he had no legal representation in his appeal before the Board, the Court of Appeal has clearly 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: see 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.

14.The applicant already had the benefit of legal representation in presenting his case fully to the Director, and was also able to give evidence at the oral hearing of his appeal before the Board and answer questions put to him by the Adjudicator with any problem, and even now in his leave application for judicial review including an oral hearing before me, he never stated or outlined what further information or argument that he wished to make but unable to do so before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process of his appeal before the Board.

15.Regarding his complain under ground (b) of not being provided with a translation of his NCF to ensure that the basis of his claim had been properly translated, as his NCF was completed with legal assistance and his case was fully advanced before the Director whilst his appeal before the board was assisted by interpreter without any problem, in the absence of any specifics provided by the applicant, I find his complain wholly speculative and without merit.

16.His last ground is wholly without merit or basis, as he had clearly received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk to which he responded in writing on 5 June 2017 by requesting for further time to submit additional evidence/documents, and that the Director replied on 8 June 2017 agreeing to allow him to do so by 15 June 2017.  Yet up to the Director’s rejection of his claim on 20 June 2017 he did not do so, nor did he in his appeal before the Board including during the oral hearing on 28 June 2017 did he raise any issue about submitting additional facts or information regarding BOR 2 risk, nor for that matter even now in his leave application.  Clearly both the Director and the Board did consider his claim under BOR 2 risk, and I do not see any merit at all in his complain under this ground.

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, or any failure on their part to apply high standard of fairness in their consideration and assessment of the applicant’s claim.

18.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 I accordingly 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