Awais Muhammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1012/2017

[2018] HKCFI 1595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1012 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 27-year-old national of Pakistan who entered Hong Kong illegally on 5 January 2014 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 7 January 2014 on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political parties Pakistan Peoples Party (“PPP”) and 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 Village Khurra Khel, Attock, Punjab, Pakistan where his parents and siblings still live.  After leaving school he worked as a shop assistant and in 2004 became a supporter of Pakistan Muslim League-Q (“PML-Q”) organizing and attending its rallies and campaigns.

3.After the general election in 2008 when PPP and PML-N became the joint ruling parties, their supporters started to oppress and attack PML-Q supporters, and one day when the applicant ran into some of their supporters, he was brutally attacked with injuries to his head and all over his body that he was taken to the hospital for treatments.

4.After his discharge from the hospital the applicant did not report the matter to the police and instead move away from his home to take up shelter at a relative’s place in Karachi for six months without any incidents before returning home.

5.However, one evening when he was on his way home from the market, he found some men shooting at him with guns from behind, and when he tried to run he was hit by a bullet in his lower back and lost consciousness.  When he woke up he found himself in a hospital where he had had an operation to remove the bullet.  After his discharge from the hospital he reported the attack to the police, but when they were unable to come up with any lead as to who was involved in the shooting, the applicant fled to Karachi where he stayed for the next three years without any further incidents, but as he still feared for his life he decided to leave Pakistan, which he did on 3 January 2014 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he subsequently completed his Non-refoulement Claim Form on 8 December 2015 with legal representation from the Duty Lawyer Service.

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

7.In his decision the Director found the level of risk of harm from the supporters of PPP or PML-N upon his return to Pakistan as low given that he was only a supporter of PML-Q without any important position in his party that it is unlikely that PPP or PML-N would use their resources and manpower to pursue him especially when he has been out of the country for more than two years, that in any event state protection would be available to him 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 to other areas away from his home district such as Lahore or Karachi where he had stayed for more than three years without any incidents before he left for Hong Kong.

8.By a Notice of Further Decision dated 10 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 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”).

9.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, which appeal he filed on 17 May 2016, and for which he attended an oral hearing on 4 September 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 decisions of the Director.

10.In its decision the Board found no evidence that the applicant had been specifically targeted by the supporters of PPP or PML-N in Pakistan or that it was they who shot him in the second incident, and that any fear of risks of harm from them would be extinguished by his internal relocation to another city such as Karachi where he had lived for three years without encountering any incidents.

11.On 5 December 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 forwards these grounds for his intended challenge:

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

(2)  wrongful exercise of case management in the Director’s failure to take proper consideration of the relevant COI in arriving at his decision which is irrational and unreasonable; and

(3)  lack of communication among authorities in the Director’s failure to ensure that his invitation for the applicant to submit additional facts relevant to his claim under BOR 2 risk had reached the applicant and for failing to give the applicant a fair chance to present his claim under BOR 2 risk.

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 able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without 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.

14.As for his complaint under ground (2) that the Director failed to take proper consideration of the relevant COI in assessing his claim, it is just a broad and vague assertion without any particulars or specifics or elaboration in support of his complaint, and upon examining those COI listed and referred to by the Director in his decision, I do not find anything amiss arising from his reliance of them in his consideration of the applicant’s claim.

15.Regarding his complaint under ground (3) of the Director’s failure to ensure that he had been properly or adequately given the opportunity to present his claim under BOR 2 risk, the Director did by a letter dated 12 June 2017 addressed to him inviting him to submit additional facts relevant to his claim under BOR 2 risk, and that in the absence of any response from him the Director was entitled to proceed to consider his claim on the facts and evidence already presented by him when he had legal representation, and if it is his case that he never received the letter from the Director or that he had difficulty dealing with the invitation or his claim relevant to BOR 2 risk when he no longer had legal representation, he however never raised any issue about it at his oral hearing before the Board nor did he request for assistance or further time to enable him to submit additional facts in support of his claim.  Even now in his leave application before me he did not make any further submission or representation regarding his claim under BOR 2 risk.  I do not find any merits in this complaint 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 7^th day of September 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