Nasar Ahmad v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 29/2018

[2018] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 29 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for judicial review be refused; and

2.  leave to apply for judicial review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.The applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 13 December 2007 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the families of the victim and/or the accused in a murder case for being a witness to the murder.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Town Kiryali, Tehsil Sirai Alamgir, District Gujrat, Punjab, Pakistan.  After leaving school he worked in various jobs and in 2007 he started to run his own shop.

3.One day in July 2007 while he was having a conversation with a customer AS in his shop, a man AB came in and shouted at AS, AB then pulled out a gun and shot dead AS and left in a vehicle with two other men.  After the police arrived they brought the applicant to the police station where he gave a police statement that he saw AB killing AS.

4.However, sometime thereafter several men approached the applicant claiming to be members of AB’s family and threatened the applicant not to give evidence against AB at the murder trial otherwise they would kill him.  As AB came from a wealthy and influential family with political connections to the ruling party Pakistan Muslim League (N) (“PML(N)”), the applicant became fearful for his life if he did not do as they demanded, but at the same time the family of the victim AS was also putting pressure on him to tell the court of what he saw of the murder otherwise they would kill him in revenge if they could not get justice for AS.

5.As the applicant felt being caught in an impossible situation between the death threats of the two families, he fled to Karachi to take shelter at his friend’s place, but when he heard that both families as well as the police were looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and therefore departed on 22 October 2007 for China, and from there he subsequently sneaked into Hong Kong and raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism, when he then completed a Non-refoulement Claim Form (“NCF”) on 12 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 23 January 2015 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 the Hong Kong Bill of Rights (“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 found significant inconsistencies in his account of the murder case and the subsequent trial, that even if his account were true that the level of risk of harm from the two families of AS and AB upon his return to Pakistan was assessed as low due to the absence or low intensity and frequency of past ill-treatment from them, that after all these years that whatever happened to the court case of the murder would have been concluded one way or the other by now, that any threats from either family would be against the law in Pakistan that state and police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 adult with work experience to move to other areas away from his home district where it would be difficult if not impossible for his perceived enemies to locate him.

8.By a Notice of Further Decision dated 16 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 maybe 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, the notice of which he filed on 3 February 2015, and for which he attended two oral hearings on 7 December 2016 and 28 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found significant discrepancies and inconsistencies in his account given in his NCF and at his oral hearing of what actually happened in his shop when AB shot AS and thereafter when he gave his statement to the police, his meetings with the two families and in particularly as to whether he did or did not give evidence as a witness at the murder trial, and concluded that it is likely that he had already given evidence against AB at the murder trial that there should not be any threats from AS’s family, and that after all these years that it is unlikely that AM’s family would still have any adverse interest in the applicant of which if still persists that he would be entitled to state or police protection upon his return to Pakistan. 

11.On 5 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 for his appeal before the Board;

(3)  lack of communication among authorities for rejecting his claim under BOR 2 risk without ascertaining whether he had received any letter or communication from the Director or to render any legal assistance to him for his claim under BOR 2 risk; and

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

12.By then the applicant was about two months late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13.The applicant never provided any explanation for his delay for two months which is not insignificant, nor did he attend the scheduled oral hearing for which he did not provide any explanation either, and while the notice of hearing sent by registered post to his last known address was returned, it is noted from the reason given by the Post Office that it was unclaimed, for which I did not see any reason to schedule a further hearing for the applicant and proceed to consider whether there is any good reason for extending time to his application, of which the most significant factor would be the merits, if any, of his intended challenge by looking into his proposed grounds.   

14.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.

15.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.

16.As for his complaint under ground (2) of not being given any language assistance in his appeal before the Board, it is clear that he did have the assistance of an interpreter at his oral hearing before the Board during which he was able to give evidence and to answer questions from the adjudicator without any difficulty and of which he never raised any language issue.  In the premises I find this complaint of the applicant wholly without merit.

17.Regarding his ground (3) of not being provided any legal assistance for his claim under BOR 2 risk, his right to legal assistance has already been dealt with above, and as correctly pointed out by the Director in his Further Decision, in the absence of any additional facts or materials from the applicant, nothing in his claim was relevant to BOR 2 risk and for which he failed to establish a personal or real risk for his claim under BOR 2 risk.  As such I do not find any basis for this complaint of the applicant either.

18.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.

19.The fact is that the applicant’s claim was doubted by the Director and was rejected by the Board essentially on his credibility as to the risk of harm from the families of AB and AS over his role as a witness in the murder trial, as it has been repeatedly emphasized by the Court of Appeal that the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

20.Further, as it was also established by both the Director and the Board in their decisions that state and police protection were available to the applicant given the nature of the risk of harm in his claim, and that it was also found by the Director that such risk 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 [2013] 1 HKC 526.

21.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.

22.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse to extend time for his leave application which is hereby dismissed.

Dated the 20^th day of December 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