Shahzad Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 711/2018

[2019] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 711 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 6 July 2015 and one month later surrendered to the Immigration Department when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by supporters of rival political party Pakistan Muslim League‌–Quaid-e-Azam Group (“PML‑Q”).  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Jalalpur Jattan, Gujrat, Punjab, Pakistan. While at school he became a member of the youth wing of the political party Pakistan Muslim League–Nawaz (“PML‑N”), and after leaving school he joined the party and became a secretary in their office in Gujrat where he soon started to experience hostilities from supporters of rival PML‑Q including their insulting and abusive language as well as violent clashes with them during which he and his fellow members had been assaulted with weapons and death threats on a number of occasions when the Applicant managed to escape without serious injuries.

3.However, after one particular violent clash in 2014 when one of his fellow PML‑N members was killed, the Applicant found himself no longer able to put up with the constant threats and harassments from the PML‑Q supporters that in late 2014 he quit his PML‑N membership and fled to take shelter in Lahore, but later when he saw some PML‑Q members in the neighbourhood whom he feared might be there looking for him, and when he continued to receive threatening phone calls from PML‑Q supporters, he therefore fled to Pakhtunkhwa,and from there he departed Pakistan on 3 May 2015 for China, and in July 2015 he sneaked into Hong Kong where he subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 20 July 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”) being violated 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”).

5.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from PML‑Q supporters upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill‑treatment from them, that there was no reliable evidence that he had been specifically targeted by PML‑Q supporters and that his conflicts with them were normal between rival political parties in Pakistan, 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 202 million people spread across a vast territory of more than 771,000 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 of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those PML‑Q supporters to locate him.

6.The Applicant then lodged an appealing to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 13 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found significant inconsistencies and discrepancies between the Applicant’s written claims and his oral evidence during the hearing relating to central and crucial aspects of his claims to which he had no response or explanation when put to him at the hearing, and which raised serious doubts about the credibility of his claims that the Board found that he was not a witness of truth, and did not accept that he was ever a member or supporter of PML‑N or that he had ever worked for the party or that he was targeted by the PML‑Q supporters or that he departed Pakistan due to any fear of harm from them, and concluded that there is not a real risk that he would face any of the proscribed forms of harm should he return to Pakistan.

8.On 24 April 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) that he was not given legal and language assistance in his appeal before the Board;

(2) that it was wrong for the Board not to hold a hearing for his appeal; and

(3) that the Director failed to properly use the COI in a fair or balanced manner in assessing state protection in Pakistan or that situations in Pakistan had improved andwithout giving any explanation as to how the balancing exercise worked in assessing his claim.

9.For his complaint in Ground (1) of not being provided legal and language assistance in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FBv 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.

10.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 with the assistance of an interpreter 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.

11.As for his complaint under Ground (2) that the Board did not hold any hearing because it thought that no worthwhile or effective representation by the Applicant could be made is simply factually incorrect, as it is clearly noted above that the Board did conduct an oral hearing on 13 December 2017 attended by the Applicant in person during which he was able to make representations and give oral evidence as well as answering questions put to him by the Board.  There is simply no factual basis in this complaint of the Applicant.

12.Regarding his complaint under Ground (3) over the Director’s use of COI in assessing his claim regarding state protection and situations in Pakistan, the Applicant did not provide any useful or meaningful particulars or elaborations for such complaint, and upon careful examination of the Director’s decision, it is clear to me that the Director did in paragraphs 17 – 18 fully and properly consider and analyze the relevant COI in assessing those issues before arriving at his conclusion with sufficiently clear explanations, and in the absence of any error being clearly and properly shown by the Applicant, I do not find this ground reasonably arguable ether. 

13.As has been repeatedly emphasized by the Court of Appeal, 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 45 – 59 of its decision with the benefit of hearing him in oral evidence and in his answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedure in the process of his appeal or in the decision,I do not find any reasonably arguable basis to challenge the finding of the Board.

15.In the premises and having considered 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.

16.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 6^th day of December 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