Abbas Raza v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1199/2018

[2020] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1199 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 34-year-old national of Pakistan who entered Hong Kong illegally on 19 October 2006 and was arrested by police on 19 October 2006.  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 a local elected official over a land dispute, and after his torture claim was rejected, he raised a claim for non-refoulement protection on the same basis.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised as a Sunni Muslim in Lahore, Pakistan.  After leaving school he worked as a salesman, and followed his family’s footsteps to become a supporter of the political party Pakistan Muslim League (N) (“PML(N)”).

3.His family owned a piece of land in the Karim Park area which was coveted by Latif,an elected official of the Union Council of Karim Park and a local leader of the political party Pakistan Peoples Party (“PPP”) who in 2006 sent his representatives to negotiate with the Applicant’s father for the purchase of his land but to no avail as the Applicant’s father found his offered price too low, and during one such occasion the Applicant got into a fight with Latif’s representatives and sustained injuries that required medical treatments at the local hospital.

4.A few weeks after his discharge from the hospital, and while he was away from home at his friend’s place, police came the Applicant’s home looking for him after Latif had made a false charge against him for being involved in an earlier bomb blast incident at the place of worship of the Shia Muslims in Mochi Gate area.

5.As a result the Applicant fled to Gujranwala and later to Karachi to hide in his friend’s place, but when he heard that Latif’s men and the police were looking for him everywhere, he felt that it was no longer safe to remain in Pakistan, and so on 2 October 2006 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 3 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 30 October 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk but including 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Latif and his men upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that it was a private land dispute between them without any official involvement that state protection would be available to the Applicant if resorted to, and thatreliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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 of Pakistan away from his home district where it would be difficult if not impossible for Latif or his men to locate him. 

8.On 10 November 2015 the Applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, of which the Board did not find necessary to conduct any oral hearing as it did not take issue with the Applicant’s credibility of the account of his claim, but on 22 September 2016 it dismissed his appeal upon finding that even on the Applicant’s own case that his problems with Latif was a private land dispute without any official involvement, and that with reasonable internal relocation available within Pakistan for him to move safely to other area away from his home district where he cannot be located by Latif or his men that his claim for non-refoulement protection failed on all applicable grounds.

9.On 1 February 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his BOR 2 risk, and upon receiving and considering his further submissions, the Director by a Notice of Further Decision dated 8 May 2017 again rejected the Applicant’s 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”).

10.On 19 May 2017 the Applicant again lodged an appeal to the Board against the Further Decision of the Director, and for which he did appear before the Board on 12 April 2018 during which he gave evidence and answered questions put to him by the adjudicator regarding his BOR 2 risk.  On 22 June 2018 his appeal was dismissed by the Board which also confirmed the Further Decision of the Director.  

11.On 26 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both 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 legal assistance for not providing him with the service of an interpreter during the process of his appeal before the Board;

(3)     failure on the part of the adjudicator to take into account the additional facts and grounds submitted by him to the Board;

(4)     failure on the part of the Board to explain its reasons for rejecting his appeal; and

(5)     failure on the part of the Director and the Board to properly consider the relevant COI as to the corruptions and malpractice of the legal system and the police in Pakistan.   

12.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 standardsof fairness laid down in Secretary for Securityv 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 rightto 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.  As suchI 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 under Ground (2) of not being provided with the service of an interpreter in the process of his appeal before the Board, as noted above, it is clear that the Applicant was assisted by an interpreter at his oral hearing before the Board during which he was able to give evidence and answer questions raised of his claim regarding his BOR 2 risk without any problem.  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.

15.Regarding his complaint under Ground (3), it is factually incorrect for the Applicant to claim that the Board did not take into account the additional facts and grounds put forward by him for his appeal, as evidenced by the detailed analysis and reasoning set out in paragraphs 9 – 19 of the Board’s decision, and in the absence of any elaboration with sufficient particularity from the Applicant, I do not find any merit in this complaint of his. 

16.The same can be said about his complaint under Ground (4) of no reasons given by the Board in dismissing his appeal, which is plainly wrong as noted above that the Board did explain in details why it found, entirely correct in my view, that the Applicant’s claim even on his own case did not engage BOR 2 or that it has no relevancy to the matters complained of by the Applicant.  As such there is no basis or merit at all in this complaint of the Applicant.

17.As for Ground (5) over the consideration of relevant COI by both the Director and the Board in assessing the situations of the police and the legal system in Pakistan, upon close examination of those COI referred to in paragraphs 22 – 24 of the Director’s first decision which were also available before the Board, and in the absence of any particulars or elaborations of any error in their assessment or reliance of those COI being clearly and properly identified by the Applicant, I do not find any basis or merit in this complaint of his either.

18.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.

19.The fact is that it has been established by both the Director and the Board in their earlier 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.

20.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.

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 10^th day of June 2020.

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