Mohammad Atta v. Torture Claims Appeal Board

HCAL 830/2017

[2018] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 830 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 25-year-old national of Pakistan who had entered Hong Kong illegally where he was subsequently arrested by police on 22 October 2015 for possession of a forged identity card and illegally remaining in Hong Kong for which he was later convicted and imprisoned.  On 9 December 2015 he lodged his non-refoulement claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Muslim League (N) (“PML-N”).

2.The applicant was born and raised in Village Pehti, Tehsil, District Attock, Punjab, Pakistan to a family of supporters of the political party Pakistan Muslim League (Q) (“PML-Q”).  He had little formal schooling and mainly worked in the farm for his family, and soon also became a supporter of PML-Q in which he held no position and only attended rallies and persuaded others to vote for the candidates of PML-Q.

3.In the election for Members of Provisional Assembly and National Assembly of 2013, he and his family voted for the PML-Q candidate for District Attock a Major Tahir but eventually the candidate from PML-N won the election. After becoming the ruling party supporters of PML-N would attack some of the supporters of PML-Q including the Applicant by hitting him with wooden sticks that caused him to suffer bruises and pain all over his body but of which he did not report to the police.

4.In addition to the assault the applicant also received threatening phone calls from those PML-Q supporters, and so in 2014 he fled to Peshawar to take shelter at a friend’s place, but in mid-2014 he was again assaulted by PML-N supporters and had to be hospitalized for two days for treatments.

5.After his discharge from the hospital the applicant fled to Karachi, but in early 2015 he was arrested by police for possession of heroin which he believes to be a false claim made against him by the PML-N people.  He was subsequently bailed out by his father who advised him to leave Pakistan for his own safety, which he did on 25 April 2015 and flew to Mainland China, and from Shenzhen he sneaked into Hong Kong where he was subsequently arrested by police and lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) and attended screening interviews before an Immigration Officer with legal representation from Duty Lawyer Service.

6.By a Notice of Decision dated 2 June 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 found no substantial ground for the applicant’s claimed fear of risk to materialize, that reliable Country of Origin Information (“COI”) show that Major Tahir won the 2013 election as an independent candidate and not a candidate from PML-Q, that in the absence of any reliable evidence of any involvement of state or police in the threats of the PML-N supporters that state protection would be available to the applicant upon his return to Pakistan, and that reasonable internal relocation alternatives are available in other cities of Pakistan away from his home village such as Islamabad or Lahore where it would not be unduly harsh for the applicant as an able-bodied young man to live and work free of any threats from the PML-N supporters.

8.By a Notice of Further decision dated 1 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 his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 13 June 2016, and for which he attended an oral hearing on 11 October 2017 before the Board but declined to give any further evidence after confirming and adopting those already in his appeal bundle, nor was he willing to answer any more questions from the adjudicator for the Board. On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the applicant’s evidence relating to the facts on which his claim is based both unreliable and incredible for the reasons set out in details in paragraphs 42 – 51, that it was unable to attach any weights to his unsupported claims that he had been assaulted and threatened by PML-N supporters at his home village and in Peshawar or that he had been falsely accessed of possessing heroin in Karachi and the fact that he may be facing a criminal charge in Pakistan cannot be sufficient reason for non-refoulement protection, and that it was only his speculation that state protection would not be available to him upon his return to Pakistan.   

11.On 31 October 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 set out his grounds for his intended challenge as follows:

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

(2)  lack of legal assistance in providing him with a translation of his NCF so that he can find out if the interpreter had been translating the basis of his claim properly;

(3)  wrongful exercise of case management power in rejecting his claim on credibility with no reasonable basis; and

(4)  lack of fair hearing for not requiring the attendance of the Director at his appeal hearing and for not giving him any chance to provide additional information for his claim relevant to BOR 2 risk.

12.For his complaint in ground (1) of not being given legal representation in his appeal before the Board, the Court of Appeal has already 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 already had the benefit of legal representation in presenting his case to the Director, and while he was given the opportunity to make further representation to the Board at an oral hearing of his appeal, as noted above he declined to do so or to answer any questions from the adjudicator for the Board.  Even at the oral hearing of his leave application before me, all he only stated was that situation back home was still bad and dangerous for him to return to Pakistan.  In the premises I do not find anything amiss arising from the lack of legal representation in the appeal process.

14.As for his ground (2) in which he complains of not being provided a translation of his NCF so that he could find out if the interpreter had translated the basis of his claim properly, it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to demonstrate that the basis of his claim has indeed been wrongly interpreted, I find this ground of his simply speculative and without any merit.

15.Regarding his complain under ground (3) of the Board rejecting his claim on credibility, it has been well established that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to do so on the facts and evidence available to them which the court will not usurp their role as the primary decision-makers, and in the absence of any particulars or specifics from the applicant to demonstrate as to how and where the Director or the Board got it wrong either as to facts or evidence in their evaluation, I find there is no basis or merit in this complaint of the applicant either.

16.As for the complaint of his remaining ground over the non-attendance of the Director at his appeal hearing, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no merit 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 18^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