Hassan Shoaib v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1488/2018

[2020] HKCFI 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1488 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 32-year-old national of Pakistan who entered Hong Kong illegally in November 2010 and was arrested by police on 18 November 2010.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncles and cousin over a property dispute.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Jalalpur Jattan, Gujrat District, Punjab,Pakistan.  After leaving school he worked as a store keeper in his home district and lived with his parents and siblings.

3.His father owned a shop in the same neighbourhood selling vegetables, but after hisdeath in 2007 his three brothers who were also vegetable sellers had taken over the shop and let it out for rental income for their own use.

4.As the Applicant and his two brothers were entitled to inherit the shop from their father’s estate, the Applicant therefore approached the three uncles for the return of the shop to his family, but they refused and threatened to kill him and his family if they were to press with their claim.

5.After the Applicant was unable to get any help from the police over the dispute as he believed that they were under the influence of his uncles especially when one of his cousins also had political connections, the Applicant therefore in 2008 filed a court case against his uncles, but when his uncles found out about it, they came to his home to demand that he withdrew his court case, and when the Applicant refused, one of them punched him which led to a scuffle between them until they were restrained by the Applicant’s mother,and the three uncles then left angrily.

6.About two weeks later when the Applicant ran into his three uncles, they again had a heated argument which led to a fight until they were restrained by some passers-by,and the Applicant subsequently had to receive medical treatment to a neck injury sustained in the fight.

7.Thereafter the Applicant did not report the incident to the police, but as he was worried about further assaults by his uncles, he therefore fled to Gujranwala to take shelter at his friend’s place without further incidents, and as he felt it was no longer safe to remain in Pakistan, he therefore departed on 6 November 2010 for China, and from there he later sneaked into Hong Kong and raised his torture claim which was later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 2 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 9 October 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 Ordinance (“HKBOR”), Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncles and cousin upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that the Applicant having left the country without proceeding with his court case against them after all these years that there is no reason to believe that they would still have any adverse interest in him, that in any event it was their private family dispute over a property without 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 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 area in Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncles or cousin to locate him.

10.By a Notice of Further Decision dated 16 May 2017 the Director again rejected the Applicant’s claim after receiving and considering the additional submissions from him 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”).

11.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 was filed on 22 October 2014, and for which he attended an oral hearing on 25 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found the ill-treatments which the Applicant claimed to have received from his uncles did not attain the minimum level of severity under any of the applicable risks, that there is no reliable evidence that his uncles had any real intention to harm or kill him or would still have such intention upon his return to Pakistan after all these years, that the Applicant has failed to establish that there are substantial grounds for believing that he would be liable to be subjected to torture or harm if sent back to Pakistan,and that with reasonable internal relocation within Pakistan for the Applicant to move safelyaway from his home district to other parts of Pakistan where he can re-establish himself without any risk of being located by his uncles or cousin that his claim for non-refoulement protection failed on all applicable grounds.

13.On 27July 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 legal assistance to provide him with proper interpreter to assist him in his appeal to the Board;

(3)     wrongful exercise of case management power on the part of the Director and the Board by putting too much weight on those COI that did not reflect the true situation in Pakistan; and

(4)     failure to apply high standards of fairness in translating the Board’s decision to the Applicant to assist him in making his application for judicial review of the Board’s decision.

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 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.

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 provided with an interpreter to assist him in his appeal to the Board, it is clear that his SCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board, during which he never raised any issue or complaintover the matter of interpretation or translation.  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.

17.Regarding his complaint under Ground (3), in the absence of any particulars or specifics from the Applicant as to how the Director or the Board had put too much weight on which COI to inaccurately assess the situation in Pakistan, and given the private nature of his dispute with his uncles, I do not find this ground reasonably arguable for his intended challenge against the findings of either the Director or the Board. 

18.As for his complaint under Ground (4) of not being provided with a translation of the Board’s decision, it plainly cannot be accepted as any valid ground for challenging the Board’s decision.  As such this ground is clearly not arguable for his intended application.

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

20.As noted above, in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity,I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

21.Furthermore, 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.

22.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.

23.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