Murtaza Ali v. Torture Claims Appeal Board

HCAL 886/2017

[2018] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 886 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 27-year-old Pakistani man who entered Hong Kong illegally and was arrested by the police on 19 December 2013, and after he was referred to the Immigration Department for investigation, he filed a non-refoulement claim with the Department on 21 December 2013 on the basis that if he returned to Pakistan he would be harmed or killed by supporters of his rival political party known as Pakistan Peoples Party (“PPP”).  On 17 January 2014 he was released on recognizance pending determination of his claim.

2.The applicant was born and raised in Village Lali, Mirpur, Punjab, Pakistan where his parents and five siblings still live.  After receiving a few years of education he quit school and was idle at home and later became a supporter of his local political party Pakistan Muslim League (Nawaz) (“PMLN”) in which his father was a member.

3.One day in April 2006 during the provincial election in his village and while the applicant, then aged 16, and his father were assisting their party at the polling station, a fight broke out between supporters of PMLN and PPP during which the applicant was attacked and was injured in his left wrist and left ankle when he fainted and was hospitalized.  Upon discharge from hospital the applicant reported the matter to the police but no action was taken by them because he believed it was due to the fact that he did not pay any bribe, while his father was charged by the police for taking part in the fight for which he was sentenced to seven days’ imprisonment.

4.Thereafter the applicant and his family moved to a neighboring city Rawalpindi with no further incidents with the PPP members for the next six months until his father received a threatening phone call from some PPP supporters that his family decided to move to Pindisabarwal in 2007 where they lived peacefully without any further incidents for the next several years.

5.However, when the next provincial election came in 2011, the applicant’s father and the family including the applicant returned to their former home in Village Lali in Mirpur to vote for PMLN when another fight broke out at the polling station between the supporters of PMLN and PPP during which the applicant was injured in his back.  The applicant’s father was again arrested by the police for the fight and after he was released on bail, he was informed by the PMLN members that some PPP members planned to kill him and the applicant.  His father therefore decided that the two of them should leave Pakistan for their own safety, but when his father was unable to obtain his visa it was decided that the applicant should go ahead to leave Pakistan, which he did on 30 November 2013 and arrived in Mainland China, and from Shenzhen he sneaked into Hong Kong on 18 December 2013 when he was subsequently arrested and lodged his non-refoulement claim with the Immigration Department, for which he completed his Non-refoulement Claim Form (“NCF”) on 28 October 2015 with legal representation under the Duty Lawyer Service. 

6.By a Notice of Decision dated 31 August 2016 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 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”).

7.In his decision the Director assessed on the facts of the applicant’s case a low future risk of harm from the PPP supporters to him upon his return to Pakistan due to the low intensity and frequency of past ill-treatments to him and his father and the fact that the latter did not have any further encounters from them despite their previous death threats to him, that objective COI show that on-going reforms in Pakistan police efficiency have been positive and that in the absence of any involvement of the state in the threats from  PPP members that state protection would be available to the applicant, and that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread in a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to live away from his home village in other cities such as Karachi or Islamabad free of any threats from the PPP supporters.

8.By a Notice of Further Decision dated 5 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

9.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 12 September 2016 and for which he attended an oral hearing before the Board on 23 June 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board agreed with the Director as to his assessments of state protection and internal relocation based on objective COI being available and reasonable to the applicant upon his return to Pakistan, but upon hearing his evidence also found his account of the threats from the PPP supporters contradictory, incoherent and plainly false,for which the adjudicator gave details and reasons for such findings in paragraphs 23 – 36 to conclude that the applicant has failed to discharge his burden of establishing any of his factual claims.  

11.On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he provided four grounds for his intended challenge which can be summarized as follows:

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

(2) lack of legal assistance for translating his non-refoulement claim form, that he never received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk hence it was unfair to dismiss his claim under that ground, and that he was not provided any language assistance for his appeal before the Board;

(3) wrongful exercise case management power by the Board for refusing to accept his submitted facts and dismissing his appeal on credibility; and

(4) lack of fair hearing for not requiring the attendance of the Director or his representative in his oral hearing before the Board without any proper reasons. 

12.For the applicant’s complaint under ground (1) of not being provided with legal representation at his appeal before the Board, the Court of Appeal has 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.

13.The applicant had the benefit of legal representation under the Duty Lawyer Service in presenting his case fully to the Director, and also attended an oral hearing before the Board during he was able to make proper representation of his case in person with the assistance of interpreter and answered questions put to him by the adjudicator for the Board without any difficulty, as he also did before me in his present leave application.  I do not see anything amiss arising from the non-availability of legal representation in the process before the Board.

14.As for the complaint under ground (2) of not receiving the letter from the Director inviting him to submit any additional facts relevant to his claim under BOR 2 risk that the applicant was therefore deprived the opportunity to do so, as noted above and assuming indeed the applicant only learnt about the invitation for him to submit additional facts relevant to BOR 2 risk from the Director’s Further Decision of 5 June 2017, some 2 ½ weeks thereafter he attended an oral hearing in his appeal before the Board during which he gave evidence and answered questions from the adjudicator, when he could have made representation about his claim under BOR 2 risk, or to seek time for him to submit additional facts relevant thereto if necessary if indeed it was his wish to do so.  Even now in his leave application including attending an oral hearing before me, the applicant did not state or outline any additional facts or submission regarding his claim under BOR 2 risk that he had wished to make but was unable to do so before the Director or the Board, and I do not find any merit in this ground of the applicant for judicial review.

15.For ground (3) regarding the applicant’s credibility, since the adjudicator had as noted above had the benefit of hearing him in evidence at the oral hearing, with detailed findings and reasons given in paragraphs 23 – 36 of the decision, and on the basis of the facts of the case the Board was certainly entitled to reach the decision on the applicant’s credibility as it did, and I do not find any wrongful exercise of the adjudicator’s discretion in rejecting the applicant’s claim on this basis. 

16.As for his last ground over the non-attendance of the Director at his hearing before the Board, there is no rule requiring such attendance, and I do not see how any prejudice would be caused to the applicant by the Director’s absence at his appeal before the Board which was, after all, a rehearing of his claim before someone other than the Director whose decision was against him in the first instance and with which he disagreed.  There is simply no basis in 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, 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.

Dated the 27^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