Talat Arslan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 262/2018

[2019] HKCFI 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 262 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 9 June 2009 and was arrested by police on the same date.  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 people of rival political party Pakistan Peoples’ Party (“PPP”), and after his torture claim was rejected 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 Jalalpur Jattan, Gujrat, Pakistan.  After leaving school he worked as a mason and joined the political party Pakistan Tehreek-e-Insaf (“PTI”) as an ordinary member responsible mainly for recruiting new members for the party.

3.In September 2007 while the applicant was waiting with several thousands of his fellow PTI supporters in Karachi for a speech by their chairman in a rally, he was hit in his head by someone with a stick from behind that he was taken to the hospital for treatment.  He did not know the man who hit him but suspected that he was a PPP member.  Thereafter he started to receive threatening phone calls from a man claimed to be from PPP demanding him to quit his party and to join PPP.  The applicant believed that the PPP people wanted him because he was famous in his school cricket team but he always refused their demands.

4.One day in December 2008 four men came to the applicant’s home claiming to be plainclothes police sent by PPP to teach him a lesson for refusing to join their party, and proceeded to punch and kick him all over his body, and when they left they warned the applicant that next time he would be killed.

5.Afterwards the applicant was taken to the hospital for treatments to his injuries including fractured right elbow and right knee.  During his hospitalization the four alleged policemen came again to warn him that after his recovery and discharge from the hospital, they would beat him again if he still refused to quit his party to join PPP.

6.After his discharge from the hospital, the applicant felt it was no longer safe to remain in Pakistan, and so he departed on 23 May 2009 for China, and from there he sneaked into Hong Kong and subsequently raised his torture claim, and when it was rejected in May 2013, he lodged a non-refoulement claim in July 2014 on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 25 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

7.By a Notice of Decision dated 28 October 2016 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”).

8.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon his return to as low due to the low intensity and frequency of past ill-treatment from the PPP people, that given his low position in his party that there is no reason why PPP would still have any interest in him after all these years, that there is no reliable evidence that those four men were indeed policemen or that they were sent by PPP, 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 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with working experience to move to other areas away from his home district in large cities such as Karachi where it would be difficult if not impossible for those PPP people to locate him.

9.On 15 November 2016 the applicant 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 26 October 2017 before the Board during which he gave evidence including a First Information Report (“FIR”) that his younger brother had just been murdered by the PPP people, and answered questions put to him by the adjudicator for the Board.  On 8 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the information disclosed in the FIR limited and unclear but no nexus between the suspected murder of the applicant’s brother and his non-refoulement claim, that there is no reliable evidence that PPP were involved in that murder or in any of the incidents occurred to the applicant in Pakistan, that it was not convinced that the PPP people would still have any adverse interest in him given his low position in PTI or that they would spend their manpower and resources to locate him after all these years, that there is also no reliable evidence that the police were after him given that he was able to leave Pakistan without any problem, and concluded in the circumstances that as both state protection and reasonable internal relocation within Pakistan are available to the applicant that his claim fails on all applicable grounds.

11.On 21 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 just one ground for his intended challenge: that he was not given any legal representation throughout his appeal/petition before the Board or when the Director determined his claim under BOR 2 risk.

12.For such complaint 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.  In the premises 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 of no legal representation in the Director’s determination of his claim under BOR 2 risk, the applicant is clearly factually incorrect as his claim under BOR 2 risk was determined by the Director together with his BOR 3 and persecution risks when he obviously had legal representation from the Duty Lawyer Service.  This complaint of the applicant has no factual basis at all. 

15.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 & anor [2013] 1 HKC 526.

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 18 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