Maqsood Ahmed v. Torture Claims Appeal Board and Another

HCAL 896/2017

[2018] HKCFI 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 896 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 51-year-old national of Pakistan who entered Hong Kong illegally on 5 May 2014 and was arrested by the police on 21 June 2014.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 24 June 2014 on the basis that if he returned to Pakistan he would be harmed or killed by the Mujahideen for refusing to join them in their fight against the Indian government for the liberation of Kashmir.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in New Malik Town, Village Jogalpal, Tehsil and District Kotli, Azad Kashmir, Pakistan. After leaving school he worked in his family’s farm land in his village for his living.  Since 2010 he had been approached by theMujahideen, a guerrilla-type military group, to join them in their fights to liberate Kashmir,and when the applicant was not willing, the Mujahideen would persist by coming to his home to press him, and one night in late 2012 they abducted him to a quiet place where they demanded a final answer from him, and when he refused, they started hitting him all over his body causing pain and bruises before leaving him with a threat that they would come back in a few days and if he still refused to join them, he would be killed.

3.Afterwards the applicant went to a clinic for treatments to his injuries, but he did not report the matter to the police as he believed that they were also afraid of the Mujahideen, and as he was concerned for his own safety, he therefore took shelter at his brother-in-law’s place in Village Dehari Bagh where he stayed for several months, then moved to his uncle’s home in Village Chicrand, and finally to his friend’s place in Karachiwithout encountering the Mujahideen in any of these places, but as he was still concerned of being located by them, he decided to leave Pakistan for his own safety which he did on 2 May 2014 when he flew to China, and from there he sneaked into Hong Kong on 5 May 2014 and raised his non-refoulement claim, and for which he completed his Non-refoulement Claim Form (“NCF”) on 22 December 2015 with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 6 June 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”).

5.In his decision the Director found the low intensity and frequency of past ill-treatment from the Mujahideen and with no encounter of them by the applicant elsewhere outside of his home village indicative of low level of risk of harm from them upon the applicant’s return to Pakistan, and as Mujahideen are banned in Pakistan as terrorists hence state and police protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocationalternatives are available in Pakistan with a large population of 193 million people spreadacross 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 where he had lived before without any incidents or threats from the Mujahideen. 

6.By a Notice of Further Decision dated 29 May 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”).

7.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 19 June 2016, and attended an oral hearing on 8 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the applicant’s evidence lacking in appropriate details and that his claim amounted to little more than a series of bald assertions with significant internal contradictions and implausibilities which he was unable to satisfactorily explain, and concluded that his account not credible, and that in any event state protection and reasonable internal relocation alternatives would be available to ensure the applicant a safe return to Pakistan.

9.On 16 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 grounds for his intended challenge:

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

(2)  lack of language assistance for translating his NCF so that he could find out whether the interpreter had translated the basis of his claim properly;

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

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

10.For his complaint in ground (1) of not being given legal representation in his appeal process, 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 thejudgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimantor 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 give evidence before the Board and answered questions from the adjudicator without any difficulty.  I do not find anything amiss arising from the lack of legal representation in the process of his appeal before the Board.

12.As for his complaint in ground (2) of not given a translation of his NCF so that he could find out whether the interpreter had properly translated the basis of his claim, it is plain that his NCF was prepared and completed on his instructions with legal representation,and in the absence of any particulars to show that the basis of his claim had indeed been wrongly or inaccurately translated or interpreted to the Board in his appeal, I find this ground of the applicant simply speculative and without merits.

13.As for ground (3) in which he complains of no reasons or explanations were given by the Director in rejecting his claim under BOR 2 risk, this is clearly wrong as the Director did in his Further Decision dated 29 May 2017 in the absence of any additional facts from the applicant despite his earlier invitation to do so proceed to consider his claim relevant to BOR 2 risk on the facts presented by him earlier with legal representation, of which the Director as primary decision-maker was perfectly entitled to do and did properlywith careful consideration.  Furthermore, if indeed he had additional facts relevant to BOR 2 risk which he wanted to submit, he could have done so at his oral hearing before the Board but he did not, nor did he request for any assistance over that matter.  This complaint of the applicant is plainly and factually wrong and without any merits.

14.Regarding ground (4) over the non-attendance of the Director at the applicant’s appeal hearing before the Board, 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 the applicant could be prejudiced or adversely affected by the non-attendance of the director at his appeal hearing before the Board. I find no merit in this ground of the applicant.

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 29^th 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