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

HCAL 308/2018

[2018] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 308 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 31-year-old national of Pakistan who entered Hong Kong illegally on 10 June 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a member of rival political party Pakistan Muslim League (N) (“PML(N)”) over their political disputes.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Peerkot, Sheikhupura, Punjab, Pakistan to a family of supporters of the Pakistan Peoples Party (“PPP”).  After leaving school he worked as a salesman and in 2006 he followed the footsteps of his father and brother to become a supporter of PPP regularly attended their meetings and rallies.

3.In 2007 the applicant’s father ran in an election for the councilor of the local village for PPP against the opposition candidate RM who was a member of PML(N), and after his father won the election and became the village councilor for the next five years, RM became bitter about his loss and frequently displayed hostilities towards the applicant’s father and his family by making verbal abuses against them whenever he ran into them in the village.

4.By March 2013 the conflicts between RM and the applicant’s family had escalated after having had several political arguments with the applicant, and one day when they ran into each other on the street, RM again verbally abused the applicant and threatened to harm or kill him if RM were to come into power by winning the upcoming election for the village councilor.

5.The applicant did not report the threats to the police but upon informing his father of the same, his father became concerned that RM might win the election and therefore actually carry out his threats against the applicant, he advised that the applicant should make arrangements to leave Pakistan for his own safety, and when RM did win the election in May 2013, the applicant moved to Gulshan Ravi in Lahore to take shelter at his uncle’s place until 2 June 2013 when he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim.

6.Whilst being released on recognizance pending determination of his claim, the applicant was again arrested by the police on 21 August 2013 for using a false identity and for undertaking employment without permission of the Immigration Department, for which he was subsequently convicted and sentenced to imprisonment for 13 months.

7.Upon his release from prison the applicant completed his Non-refoulement Claim Form on 21 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service, in which he further disclosed that in February 2017 he was informed by his father that RM had made a false claim to the police that his father was involved in drug trafficking and other illegal activities, but after finding no such evidence the police did not take any further action against his father or his family.     

8.By a Notice of Decision dated 26 April 2017 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”) 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 substantial grounds for believing that there will be any real risk of him being harmed or killed by RM upon return to Pakistan due to the absence or low intensity and frequency of past ill-treatment from RM which were all verbal threats only, that his father and brother have since RM won his election been still living in their home village and participating in political activities for PPP without any incidents which indicate no real intention of RM to harm the applicant or his family, that in the absence of any official involvement that state 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 adult with work experience to move to other area away from his home district such as Karachi or Lahore where it would be difficult if not impossible for RM to locate him.

10.The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 6 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board assessed the incidents of past harms in the applicant’s account as at very low level and to have occurred long time ago, that any verbal abuse or threats suffered by him was regarded as hollow after RM had won his election and was no more than just unpleasant political harassment between rival political parties, that apart from the claimed police report that his family in particular his father has not experienced any harm since the applicant departed Pakistan and that he was able to live safely in Lahore prior to his departure, that it would not be unreasonable for him to live in Lahore or other area away from his home district if his fear of harm from RM somehow still persists, and concluded that the applicant has failed to discharge his burden of establishing that he faces a real risk of harm if refouled to Pakistan that would warrant international protection now or in the reasonably foreseeable future.

12.On 27 February 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 to assist him in preparing and filing his appeal to the Board;

(3)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk;

(4)  failure on the part of the Board to give reasons for not requiring the attendance of the Director at his appeal hearing; and

(5)  failure on the part of the Director to properly use or rely on relevant COI 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 the preparation and filing of his appeal to the Board, for the same reason as given above and the fact that he was assisted by an interpreter at his appeal hearing during which he never raised any issue or problem with language or interpretation that I find this complaint of his without any merit.

16.Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did so in paragraphs 23 – 25 of his decision when he dealt with his claim under BOR 2 risk, and on the basis of the information available he was perfectly entitled to arrive at the conclusion as he did in his decision.  There is again no basis for this complaint of the applicant.

17.As for his complaint in ground (4) 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.

18.Regarding his complaint in his last ground of the Director not properly relied on relevant COI in considering his claim, the applicant did not refer to any particular COI or cases in support of his complaint other than in paragraph 19 of his affirmation in which he claimed that the Board failed to justify the information which indicates how the ruling party abused the law in Pakistan, of which I fail to see any relevancy to his case when the asserted risk of harm only came from RM with no evidence whatsoever of any involvement of the ruling party or of any officials of the state or authorities in such claim, whilst the way the police handled RM’s false report of illegal activities against his father show that they did not abuse their power but instead properly carried out their investigation which eventually exonerated his father and his family.  Again I do not find any basis or merit in this complaint of the applicant.

19.Further, 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 [2013] 1 HKC 526.

20.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.

21.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 3^rd day of January 2019.

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