Subhani Karamat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1045/2017

[2018] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1045 of 2017

BETWEEN

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 26-year-old national of Pakistan who entered Hong Kong illegally on 27 July 2015 and on the following day surrendered to the Immigration Department.  On 23 November 2015 he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by supporters of political party Muttahida Quami Movement (“MQM”) for switching his support for them to its rival Pakistan Muslim League- N (“PML-N”).  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Doda Kharana Village, Gujrat, Kharyan, Punjab, Pakistan where his father was an official member of MQM and the third secretary of its head office in Karachi and of which his entire family were supporters.  However, after his father died of a heart attack in 2013, the applicant’s elder brother NS disclosed to the family that the cause of his father’s heart attack was due to pressure from the MQM leader to carry out illegal activities for the party but resisted by his father who was therefore under tremendous stress that eventually led to his death. 

3.When there was a general election for local council in 2014, NS advised the family not to vote for MQM anymore due to their illegal activities and instead to vote for its rival PML-N like many of the people in the villager did and which they also did.  Several months later the applicant started to hear that MQM supporters had been exerting revenge on those villagers who did not vote for them, and one day NS was threatened by some strangers that soon MQM supporters would go after him and his family, for which NS sought assistance from the police but when no follow-up actions were taken by them, and after hearing news that some of their friends had been killed by MQM supporters, the applicant and his family moved out of their village to take shelter at a relative’s place in Arifwala.

4.However, after staying in Arifwala for two months, the applicant heard that some people in Arifwala had also been killed by MQM supporters, he and his family therefore moved to Lahore to stay at a friend’s place for a couple months before moving again to Faisalabad where they stayed for several months until mid-2015 when his siblings decided to move elsewhere, the applicant felt it was not safe for him to remain in Pakistan and therefore departed on 5 July 2015 for China and then to Hong Kong where he subsequentlylodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 August 2016 with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 October 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 of HKBOR (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 the absence of any ill-treatments from MQM supporters to the applicant and that they only made verbal threats to his brother indicative of low future risk of harm from MQM upon the applicant’s return to Pakistan, 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 as an able-bodied young man to move safely to other areas away from his home district such as Karachi. 

7.On 2 November 2016 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 1 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found many aspects of the applicant’s claims not credible, with significant inconsistencies between his evidence to the Director and to the Board during his oral hearing for which the applicant blamed the interpreter of being biased against him which was not accepted by the adjudicator, as his evidence was found also inconsistent with his written claims to the Director, that it did not accept his claims in relation to attacks or harm towards him and his family from the MQM or that his father was a secretary for the MQM or that he had any involvement with the MQM, or that the applicant or his brother or other family members were in hiding in Pakistan, or that the applicant genuinely fears harm in Pakistan for the reasons he has claimed, and concluded that he is not a truthful witness and that he has manufactured his claims for non-refoulement protection in Hong Kong. 

9.On 8 December 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 in his appeal before the Board;

(2) lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3) wrongful exercise of case management power in that there is no reasonable basis for rejecting his credibility by refusing to accept his evidence as to his claim of attacks or harms towards him and his family by the MQM or that his father was a secretary for the MQM or that he had any involvement with the MQM in Karachi or Gujrat, and for giving undue weight to COI in its assessment of the law enforcement situations in Pakistan; and

(4) lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

10.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.

11.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator with the assistance of an interpreter without any difficulty.  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.

12.As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

13.Regarding his complaint under ground (3) of no reasonable basis for the Board not to accept or believe his claims of attacks and threats from MQM against him and his family or that his father was a secretary for MQM, which is an issue of his credibility of which the adjudicator upon hearing him in evidence was entitled to do so for the detailed reasons and analysis given in paragraphs 39 – 49 of the decision, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and I do not find any basis or reason for interfering with the Board’s decision.

14.As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative 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 or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

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 31^st day of August 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