Nadeem Asif v. Torture Claims Appeal Board

HCAL 868/2017

[2018] HKCFI 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 868 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 37-year-old national of Pakistan who entered Hong Kong illegally in about late September 2007 and was arrested by the police on 4 February 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on 16 June 2009 with the Department on the basis that if he returned to he would be harmed or killed by certain members of the Pakistan People’s Party (“PPP”) for refusing to carry out illegal activities against their rival political party.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Chebee Gulali Pur, Faisalabad, Pakistan where his parents and siblings as well as his wife and his daughter still live.  After leaving school he worked as a farmer and became a supporter of the PPP participating in their rallies and elections activities.

3.In about March 2006 two senior members of PPP namely AA and MR approached the applicant to join them in attacking the supporters of opposite party the Pakistan Muslim League (N) (“PML(N)”) and burning down their shops, and when the applicant showed his reluctance they warned him that he must do according to the party’s command.

4.About a month later AA and MR again came to the applicant’s home to demand that he joined them in their attacks of the supporters of PML(N), and when the applicant refused, they started to hit him with wooden sticks and warned him not to go to the police.  For the next few months AA and MR continued to intimidate and assault the applicant when he still refused to join them in their violent activities, and that the applicant had had to take refuge at his friends’ places in different towns, but when he heard that AA and MR also started to harass and threaten his family when they failed to find him, the applicant decided to leave Pakistan for his own safety, which he did on 18 September 2007 for China where he stayed for several days before sneaking into Hong Kong where he was arrested and raised his torture claim, which was subsequently considered by the Department as a non-refoulement claim under the Unified Screening Mechanism after the applicant was provided with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 8 August 2014 the Director of Immigration (“the Director”) rejected the applicant’s 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”).

6.In his decision the Director assessed the risk of harm based on the applicant’s case from AA and MR as low upon his return to Pakistan after all these years, that in the absence of any evidence of any involvement of the state or the police in the threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that the applicant can safely move to areas away from his home district such as Sargodha or Rawalpindi.

7.On 21 August 2014 the applicant filed his notice of appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), for which he attended an oral hearing on 8 December 2014 before the Board but declined to give any evidence at the hearing.  On 20 July 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found that as the applicant declined to testify there are questions about his claim and his decision to leave Pakistan for Hong Kong that were not answered and hence affected the credibility of his claimed fear of risk of harm from those members of PPP, that even if such risk still persists state protection would be available to him, and that reasonable internal relocation alternatives are available for his safe return to Pakistan in other areas away from his home district, that in the circumstances he would not be entitled to non-refoulement protection in Hong Kong.

9.On 20 December 2016 the Director by letter invited the applicant to submit any 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”), and in the absence of any response from the applicant the Director on 6 January 2017 rejected his claim under BOR 2 risk.

10.On 20 April 2017 the applicant again appealed to the Board against the Director’s further decision, and the Board decided to deal with his appeal on papers in the absence of any additional facts from the applicant relevant to the BOR 2 risk, and on 28 September 2017 found the applicant to have failed to establish his claim under BOR 2 risk and therefore dismissed his appeal.

11.On 11 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board and in the Director’s determination of his claim under BOR 2 risk; and

(2)  lack of legal assistance in his claim under BOR 2 risk and for failing to properly consider his claim or to give proper reason for dismissing his claim.

12.For his complaint in ground (1) of not being provided 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: 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 was given an opportunity to testify or to make further representation in his appeal hearing before the Board but had declined to do so.  Having failed to submit any additional facts relevant to his claim relevant to BOR 2 risk of which the Board was entitled to consider his claim based on the facts earlier presented by his legal representation to both the Director and the Board, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.Regarding his ground (2) it is plainly wrong for the applicant to claim that no explanation was given by the Board in rejecting his claim under BOR 2 risk, which the Board clearly did in paragraphs 7 – 8 of his second decision, and as already noted above in the absence of any additional facts provided by the applicant relevant to BOR 2 risk other than a short note attached to his Notice of Appeal repeating his allegation of hostility from the PPP who will locate him anywhere in Pakistan, the adjudicator was entitled to consider his claim under BOR 2 risk based on the facts and evidence presented by the applicant as before, and for those reasons set out in the decision rejected his claim accordingly, and I do not see any basis for the applicant’s complaint in this ground.

15.In the premises and having proceeded to consider 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 1^st day of June 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