Muhammad Kamran v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 74/2018

[2018] HKCFI 2181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 74 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 30-year-old national of Pakistan who entered Hong Kong illegally in September 2012 and was arrested by police on 8 September 2012.  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 girlfriend’s brother and his followers who disapproved their relationship. Upon the subsequent rejection of his torture claim by the Immigration Department, he then lodged a non-refoulement claim on the same basis.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Adal Zai, Tehsil Hazro, District Attock, Pakistan.  After leaving school he worked in various manual labour jobs in his village and in Karachi.  In about 2009 he started a relationship with a girl from a farming family in the same village but her elder brother AS was known to be a gangster and had been in and out of prisons for the crimes of fighting and robberies.

3.In about mid-2012 as the applicant and his girlfriend wanted to get married but as her family was against their relationship, they decided to elope to Rawalpindi to get married there, but on their way they were intercepted by AS, his cousin and a friend who pulled his girlfriend away and punched him on the face.  When the applicant eventually managed to run away, he fled to Rawalpindi and took shelter at his friend’s home for a month, but when he was told by his mother that AS had threatened to kill him if and when he returned to the village, he felt it was no longer safe to remain in Pakistan, and so he departed in July 2012 for China, and from there he sneaked in to Hong Kong and subsequently raised his torture claim.

4.On 17 January 2013 his torture claim was rejected by the Immigration Department, and when his appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 2 May 2013, he lodged a non-refoulement claim on the same basis notwithstanding his disclosure that his girlfriend has since married another man and that AS had been sent to prison by the Pakistan authorities for robbery but that he was still in fear of his girlfriend’s family.

5.Upon obtaining legal representation from the Duty Lawyer Service (“DLS”) the applicant completed a Supplementary Claim Form (“SCF”) on 16 November 2016 and attended screening interview before the Immigration Department under the Unified Screening Mechanism.

6.By a Notice of Decision dated 25 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the remaining 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”).

7.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial ground for believing that there will be any real risk of him being harmed or killed upon his return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from his girlfriend’s family, 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 Lahore or Karachi where he had worked before and where it would be difficult if not impossible for AS or other members of his girlfriend’s family to locate him.   

8.The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 29 December 2017 before the Board but declined to give any evidence or further information or to answer any question from the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found material aspects in his claim as set out in paragraph 26 of its decision which the applicant failed or declined to explain or clarify and hence was unable to give any weight to them, that there is nothing in his claim to indicate there should be non-refoulement, and that in any event internal relocation in Pakistan is viable for the applicant as a relatively young man with work experience such as in Karachi where he had lived and worked before.

10.On 15 January 2018 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 put forward the following grounds for his intended challenge:

(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 by giving undue weight to the general violence and dangerous situation in Pakistan and by failing to take into consideration of the COI which show malpractice of police and other authorities in Pakistan and their failure to provide safety to their citizens; and

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

11.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.

12.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.

13.As for his complaint under ground (2) of not being provided with a translation of his NCF which should in fact be his SCF, which 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 basis.

14.Regarding ground (3) of the applicant’s complaint about the Board’s failure to take into consideration of relevant COI in its assessment of corruptions and effectiveness of police and other authorities in Pakistan to protect its citizens and of the recent violent incidents in its cities, of which the adjudicator did properly consider in paragraph 28 of his decision and found that the general dangerous situation as depicted by the applicant would avail him in rejecting internal relocation, of which he was entitled to do so on the information available to him.  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 per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or harm upon his return: see Re RS CACV 206/2012, 20 August 2013.  The applicant’s claim at the highest arose from a private and personal family dispute with absolutely no evidence of any official involvement or any risk of harm or persecution from the state or authorities to the applicant.  As such the Board in fact did not have to refer to any COI.  This complaint is wholly without merit.  

15.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.

16.Further, the fact 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.

17.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.

18.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