Ali Zulfiqar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 64/2018

[2018] HKCFI 2187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 64 of 2018

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 29-year-old national of Pakistan who entered Hong Kong illegally on 14 August 2009 and was arrested by police on 16 August 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over a land dispute and/or discriminated as a Mochi by other castes in the Pakistani society, and when his torture claim was rejected and his subsequent appeal dismissed, he lodged a non-refoulement claim on the same basis as before.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Ghurgushti, District Attock, Punjab, Pakistan to a family of the Mochi caste where his parents and siblings still reside, and where his father and his elder brother (paternal uncle) inherited some land from the grandfather on which the two families used to live in the same house and farmed in the farmland.  After leaving school the applicant worked as an electrician in his father’s shop but found that he was being excluded by other villagers and that no one in the village was willing to marry a Mochi.

3.His paternal uncle used to work in Saudi Arabia and supported his family by remitting money back to Pakistan, but in 2001 when he returned to the home village in Pakistan, he frequently raised issues with the applicant’s father over the ownership of the land as he claimed that as the elder son in the family he should be entitled to the full ownership of both the house and the land, and the applicant’s father disagreed, it led to frequent conflicts between the two of them and their families.

4.In early 2008 the applicant’s father sought assistance from the village elders to resolve the land dispute but the applicant’s uncle refused to accept their assistance, and the conflicts just escalated during one of their arguments when a fight broke out between the two families during which the applicant joined in the fight that his uncle threatened to kill him for daring to stand up to him.

5.Several days later the sons of the uncle attacked the applicant by punching and kicking him causing bruises to his body, and on the same evening he was attacked by his uncle who again threatened to kill him.

6.After the last incident the applicant and his family moved out of the family house to another place in the village to avoid further confrontation with the uncle and his sons, but after he was unable to get any assistance from the local police and as he was still fearful of his uncle’s threats, the applicant decided to leave Pakistan for his own safety, which he did on 10 August 2009 when he departed for China, and from there he sneaked into Hong Kong when he raised his torture claim upon arrest by the police.

7.On 27 August 2009 he was released on recognizance pending determination of his torture claim, but on 25 July 2011 he was arrested for taking employment without permission for which he was convicted and sentenced to 14 months’ imprisonment. After his torture claim was rejected on 16 August 2012 as well as his subsequent appeal, the applicant then lodged a non-refoulement claim for which he later completed a Supplementary Claim Form on 12 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.  He also married a local resident on 2 July 2014 and six days later submitted an application for entry for residence as a dependent but no further action has been taken with that application since July 2016.

8.By a Notice of Decision dated 10 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) including right to life under Article 2 (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no reliable evidence of him being discriminated or excluded as a Mochi, and assessed the level of risk of harm from his uncle upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from the uncle and his sons, that it was a private family dispute and that the applicant’s family still reside safely in the same village after all these years, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 with work experience to move to other area away from his home district such as large cities like Karachi or Lahore where it would be difficult if not impossible for his uncle to locate him.

10.The applicant then lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 28 December 2017 before the Board but during which he did not give any evidence, and was only willing to answer just a few questions from the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found no evidence to support the applicant’s claim on any of the applicable grounds or that the severity of his alleged threats or harms even on his own case has attained the level contemplated by any of the applicable grounds, that there is no evidence to suggest that after all these years and after the applicant and his family had moved away from the land that his uncle would still have any adverse interest in him, and that internal relocation is viable in other places away from his home village in Pakistan such as Karachi, Lahore and Islamabad in which the applicant as an educated young man with work experience can safely settle. 

12.On 12 January 2018 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 in his appeal before the Board;

(2) lack of language assistance in his appeal before the Board; and

(3) wrongful exercise of case management power on the part of the Director for failing to take into account of the relevant COI as to the inefficiency of state protection in Pakistan in the consideration of his claim. 

13.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.

14.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.

15.As for his complaint under ground (2) of not being provided with language assistance in his appeal before the Board, it is clear that he was assisted by an interpreter at his appeal hearing before the Board, I find this complaint of the applicant simply speculative and without basis.

16.Regarding his complaint under ground (3) of the Director’s failure to take into consideration of the relevant COI as to the inefficiency of state protection in Pakistan, the applicant has failed to provide any particulars or specifics in support of this complaint, and while the COI do show serious problems of police corruptions in Pakistan, they also indicate on-going reforms and improvements with positive results in recent years, and as held by the Court of Appeal, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country, or as in this case of the ineffectiveness of police protection of its citizens in Pakistan, it does not per se constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or persecution upon his return: see Re RS CACV 206/2012, 20 August 2013, and I do not find any basis in this complaint of the applicant either.

17.The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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.

19.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 26^th day of October 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