Hussain Khalid v. Torture Claims Appeal Board and Another

HCAL 848/2017

[2018] HKCFI 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 848 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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 23 February 2013 and was arrested by the police on 24 February 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim with the Department on the basis that if he returned to Pakistan he would be harmed or killed for being a witness to a murder.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Jallo Mor, Bata Pur, Lahore, Punjab, Pakistan where his parents and family still live. After leaving school he first worked in an embroidery factory and later as a self-employed embroidery worker.  He had no political affiliation but liked to visit his friends at the Pakistan Muslim League (N) (“PML(N)”) party office near his home in Jallo Mor.

3.One afternoon in August 2012 while he was visiting his friends at the PML(N) office, some members of the Pakistan People’s Party (“PPP”) led by a man MS stormed in and started shooting inside the office, but the applicant was able to escape unharmed and fled home.  Afterwards he leant that one of his friends TA had been killed in that incident and that the police were conducting an investigation, and a few days later TA’s mother asked him to go to the police station to assist in their investigation where he gave a statement and identified MA as one of the shooters, and as a result MA was detained by the police.

4.However, after he had been released on bail, MA came armed with a pistol with several men and threatened the applicant not to testify against him in the murder trial or else they would kill him.  However, as the police were also pressing him to be their witness in the coming trial, the applicant felt being caught in between and decided to leave Pakistan for his own safety.  He therefore departed on 4 December 2012 for Macau where he stayed for two months before sneaking into Hong Kong in February 2013 where he subsequently lodged his non-refoulement claim with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 11 February 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 found on the facts of the applicant’s case that MA would only pursue him if he were to return to Pakistan to be a witness against him, in which case state and police protection would be available to him as a witness to a murder case, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that the applicant can move to areas away from his home district such as Islamabad or Faisalabad where he can live and work free of any threats from MA.    

7.By a Notice of Further Decision dated 23 November 2016 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”). 

8.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 18 February 2016, and for which he attended two oral hearings on 29 November 2016 and 25 January 2017 before the Board during which he however declined to give any further evidence, and stated that he would rely on the materials in the hearing bundle before the Board, and that he had no further representation or materials to be submitted.  On 28 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that there is no real chance that the applicant will be harmed upon his return to Pakistan, and that state protection will be available to him, and that in the circumstances of his case the question of internal relocation alternatives does not even arise.

10.On 6 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 the following grounds for his intended challenge as follows:

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

(2)  lack of language assistance for not providing him with a translation of his NCF;

(3)  lack of fair hearing for not providing assistance in dealing with BOR 2 risk; and

(4)  lack of fair hearing for not requiring the attendance of the Director at his appeal hearing before the Board.

11.The applicant was then in fact out of time with his leave application by about 5 weeks, as Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose, which means not later than 28 September 2017 in the applicant’s case, unless the court considers that there is good reason for extending the period within which the application shall be made.

12.The applicant however has not made any application for extension of time nor provided any explanation for his delay, and while the merits of his intended challenge can be a significant matter to be taken into account to see whether there is a good reason for extending time (see Re Thomas Lai [2014] 6 HKC 1), an examination of the applicant’s grounds show that there is none.

13.For his ground (1) in which the applicant complains of not being given any 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 mush 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 to the Director, and was able to testify and made representation in his appeal before the Board, and I do not find anything amiss arising from the lack of legal representation in his appeal process.

15.As for his complaint in ground (2) of not being provided a translation of his NCF so that he could find out whether the basis of his claim had been properly interpreted, it is plain that his NCF was prepared on his instructions with legal representation from DLS, and that he was assisted by an interpreter during his appeal hearing before the Board, and given that the basis of his claim had always been clear and straightforward throughout the proceedings, I find this ground of the applicant simply speculative and without any merit.

16.His complaint in ground (3) is similarly without merit, of which he never raised as an issue in his appeal before the Board when he actually declined to give any evidence or to submit any further information at the oral hearings, and in the absence of any additional facts from him in support of his claim relevant to BOR 2 risk, both the Director and the Board were entitled to deal with his claim on the facts before him, and I do not find any merit in this ground of the applicant either.

17.As for ground (4) about the non-attendance of the Director at his appeal hearing before the Board, I simply fail to see any rationale for insisting that the Director be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced by the non-attendance of the Director at his appeal hearing before the Board.

18.In the premises I do not find any merits in the applicant’s intended application for judicial review, and in the absence of any good reason for extending time, his leave application is hereby dismissed.

Dated the 22^nd 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