Matloob Hassam v. Torture Claims Appeal Board and Another

HCAL 944/2017

[2018] HKCFI 1375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 944 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 33-year-old national of Pakistan who entered Hong Kong illegally sometime in January 2014 and was arrested by the police on 17 January 2014 when he subsequently 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 a man AK over certain dispute with him in Pakistan. 

2.The applicant was born and raised in Jalal Pur Jattan, District Gujrat, Punjab, Pakistan.  After leaving school he first worked as a salesman until 2004 when he became a rickshaw driver.  He was also a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) but was not a member or held any position in the party.

3.One day in 2005 his rickshaw picked up four passengers including AK who was a wealthy and influential man in his district and supported the political party Pakistan Muslim League (Q) (“PML(Q)”), but after driven them to their destination AK and his men refused to pay for their fares and instead gave the applicant a beating, and then one of the men stabbed him in the stomach with a knife when the applicant lost his consciousness.   

4.As a result the applicant was hospitalized for more than a week, and upon his discharge he reported the matter to the police. A few weeks later AK and his men came to the applicant’s home and threatened to kill him unless he redrew his complaint to the police.  They then fired shots at the walls of the applicant’s home before they left.  Thereafter the applicant fled to Lahore where he took shelter at his relative’s home.

5.One day in October 2007 when the applicant ran into several men in Lahore who started firing shots at him without saying anything but the applicant was able to escape unhurt.  As he suspected that the men were sent by AK to kill him, he decided to leave Pakistan which he did on 16 November 2007 for China and from there he sneaked into Hong Kong when he was subsequently arrested by the police and lodged a torture claim with the Immigration Department which he later withdrew in July 2012 after being told by his family that AK was willing to settle their dispute, and so he was repatriated to Pakistan in August 2012.

6.Upon his return to Pakistan the applicant started to assist PTI in the General Election in May 2013 and when PML(Q) lost the election, AK became very resentful and blamed the applicant for his party’s loss. And when the applicant heard that AK planned to kill him in revenge, he became fearful for his life and decided to leave Pakistan again for Hong Kong in January 2014 when he was subsequently arrested by the police and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 9 April 2015 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 15 April 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”).

8.In his decision the Director found on the facts of the applicant’s case no substantial grounds to believe that the risk of harm from AK upon his return to Pakistan is real and foreseeable, that the only threat from AK was only verbal and hearsay, that there was evidence of any state or police involvement in AK’s threat 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 199 million people spread across a vast territory of more than 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 safely live and work free of any threats from AK.     

9.By a Notice of Further decision dated 7 July 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”).

10.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, for which he filed his appeal on 26 April 2016, and attended an oral hearing on 28 July 2017 before the Board during which he confirmed his claim as set out in the documents of his hearing bundle and gave further evidence and answered questions put to him by the adjudicator for the Board.  On 18 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the dispute the applicant had with AK was purely a private matter without any involvement of the state or police that state protection would be available to him as well as reasonable internal relocation alternatives that the applicant faces no genuine or substantial risk of being harmed if refouled to Pakistan.

12.On 23 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 put forward the following ground for his intended challenge:

(1)  lack of legal representation in his application for judicial review;

(2)  lack of language assistance for not being provided with any translation of his NCF and hence no means for him to find out if the interpreter had properly translated the basis of his claim;

(3)  no reason given for rejecting his claim under BOR 2 risk; and

(4)  lack of fair hearing for rejecting his claim under BOR 2 risk without providing assistance or further screening interview to enable him to submit additional facts relevant to BOR 2 risk.  

13.His complaint in ground (1) of not being provided with legal representation in his present application for judicial review is a non-starter as it was not an issue in the process before the Director or the Board in dismissing his claim, nor is it a matter for the court in judicial review.  If it were a case of him 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.

14.As for his complaint under ground (2) of not being provided a translation of his NCF so that he could find out if the interpreter had properly translated the basis of his claim, 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 before the Board, and in the absence of any particulars or specifics from him to show that indeed the basis of his claim had been wrongly interpreted, I find this ground of his simply speculative and without any merits.

15.His complaints under grounds (3) and (4) can be dealt with together in that it is clear that the Director did in his Notice of Further Decision dated 7 July 2017 give reasons for rejecting the applicant’s claim under BOR 2 risk after receiving no additional facts or materials from him, and for which the Director was entitled to hold that no further screening interview was necessary given the fact that it was never requested by the applicant.  If indeed the applicant had any additional facts or further representation relevant to BOR 2 risk that he wanted to make, he could have done so at his subsequent oral hearing before the Board on 28 July 2017 but he never did, nor did he in his leave application now before me.  In the circumstances I do not find any merits in these grounds of the applicant either. 

16.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.

17.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 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