Zaman Muhammad v. Torture Claims Appeal Board and Another

HCAL 905/2017

[2018] HKCFI 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 905 of 2017

BETWEEN

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 and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 32-year-old national of Pakistan who had entered Hong Kong illegally and was arrested by the police on 17 January 2016.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 19 January 2016 with the Department on the basis that if he returned to Pakistan he would be harmed or killed by members of a political party known as Pakistan People’s Party (“PPP”) for leaving them to join their rival party.  He has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in Faisalabad, Punjab, Pakistan.  After leaving school he worked in various business including selling clothing and mobile phone.  He previously supported PPP but in 2015 he joined the then ruling party Pakistan Muslim League (Noon) (“PML-N”).

3.One day in 2015 while he was on his motor cycle going to his shop and stopped at a traffic light, he was ambushed by four armed men and lost consciousness after being hit on the head.  He was then sent to the hospital for treatment and the incident was reported to the police by his brother.  A few days later he received a telephone call when the caller threatened to kill him if he did not rejoin PPP.  He therefore believes it was the members of PPP who attacked him several days ago.

4.Upon his discharge from the hospital and when he learnt that the police’s investigation did not lead to any result, he decided to leave Pakistan for his own safety in January 2016 for Mainland China and from there he sneaked into Hong Kong when he was subsequently arrested and raised his non-refoulement claim, for which he completed his non-refoulement claim form (“NCF”) on 27 April 2016 under the Unified Screening Mechanism with legal representation under the Duty Lawyer Service. 

5.By a Notice of Decision dated 14 February 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights including right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”). risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 that state and police protection would be available to the applicant assuming that his accounts of threats from PPP were true given the absence of any evidence of any involvement of the state or the police being involved in any of the threats from PPP and the fact that his party PML-N is the ruling party of Pakistan, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of more than 200 million people spread over a vast territory of 796,000 square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home district such as Karachi or Islamabad where he can live and work free of any threats from those PPP supporters. 

7.On 27 February 2017 the applicant filed his notice of appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 2 November 2017 before the Board but declined to give any evidence or to answer any questions from the adjudicator for the Board.  On 9 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted that the applicant may have changed his support from PPP to PML-N but given his low level position and involvement in either party it considered not credible that he would be so intensively targeted and pursued by PPP or that they would still have such an adverse interest in him, something which the applicant could have explained but declined to do so at the hearing, it found his account unreliable and that his claim for non-refoulement protection in Hong Kong has been manufactured in an attempt to enable him to remain in Hong Kong, and that even if his account were true, reliable and objective COI show that state protection and internal relocation alternatives are available to him upon his return to Pakistan.

9.On 17 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 set out his grounds for his intended challenge as follows:

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

(2) lack of language assistance in translating his NCF for him so that he could ensure that the basis of his claim had been properly translated by the interpreter in the process of his appeal;

(3) lack of fair hearing/procedural unfairness when the Director was not required to attend the hearing of his appeal before the Board and for which no reason has been given; and

(4) wrongful exercise of case management power when the adjudicator for the Board failed to make proper inquiry into COI as to the effectiveness and availability of state protection for him. 

10.For his complaint under ground (1) of no legal representation in 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.

11.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify in his appeal before the Board and to answer questions put to him by the adjudicator for the Board without any difficulty.  Even now in his leave application for judicial review including attending an oral hearing before me, he merely asked for more time to produce further information from his home country but without giving any details or specifics as to what information or how long it would take from Pakistan, and for which it was refused.  In the premises I do not find anything amiss arising from the non-availability of legal representation in the process of his appeal before the Board.

12.Regarding his complaint in ground (2) of not being provided with a translation of his NCF and hence no means for him to find out if his claim had been properly translated by the interpreter, it is clear that the NCF was completed with legal assistance and representation from the Duty Lawyer Service and on his instruction, and in the absence of any specifics this complaint of the applicant is simply speculative and without any merit.

13.As for ground (3) over the non-attendance of the Director at his appeal hearing, there is simply no rule requiring such attendance, and I do not see how the applicant could have been prejudiced by the Director’s absence in his appeal which is after all a rehearing of his claim by the Board.  I do not see any basis at all in this complaint of the applicant.

14.As for his last complaint under ground (4), the applicant has not provided any particulars or specifics to show how and where did the adjudicator get it wrong from the COI in her assessment of state protection available in Pakistan, and having examined those listed and referred to by both the Director and the Board, I do not find any merit in this complaint of the applicant either. 

15.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.

16.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 4^th day of May 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