Sarfaraz Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1365/2018

[2020] HKCFI 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1365 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 52-year-old national of Pakistan who entered Hong Kong illegally on 2 January 2007 and was arrested by police on 19 April 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by some fellow villagers who were supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Kawankh, District Gujrat, Punjab, Pakistan.  After leaving school, he worked as a farmer in his home village, and became a supporter of the political party Pakistan Peoples Party (“PPP”) regularly attended its meetings and rallies.

3.During the local government election in 2005, there were frequent clashes between supporters between the main rival parties including those of PML(N) and PPP which often erupted into mass brawls, and during one of which participated by the Applicant, he was injured in the fight and was taken to the hospital for treatments.

4.Upon discharge from the hospital and while he was resting at home, the Applicant heard that many of the PML(N) supporters in his village had also been injured in the incident, and that they all put the blame on him and swore to take revenge against him.

5.Fearing for his own safety, the Applicant therefore fled to Lahore to take shelter at his uncle’s home, but when he heard that those PML(N) supporters were still looking for him everywhere, and when he continued to receive threatening phone calls from them, he decided that it was no longer safe to remain in Pakistan, and so in 2006 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 July 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, 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”).

7.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 from those local PML(N) supporters upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by them due to his low position in PPP, that in any event it is doubtful that they would still have any adverse interest in him after all these years, 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 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 working experience to move to other area of Pakistan away from his home district in large cities such as Lahore where he had stayed before without incidents and where it would be difficult if not impossible for those PML(N) supporters to locate him.

8.On 11 August 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 30 January 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the adjudicator for the Board.  On 9 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the Applicant less than forthcoming in providing answers in the hearing as he did not wish to talk much about his case or background that he was found to be evasive and shifty in his answers to questions raised of his claim that it was not accepted that he was at risk of harm from those PML(N) supporters, and that in any event that with reasonable internal relocation within Pakistan for the Applicant to move safely to other areas away from his home district in large cities such as Lahore where he had stayed before without incidents that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 19 December 2016 the Director on his own initiative by letter invited the Applicant to submit any additional facts which he may consider relevant to claim including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 January 2017 rejected his claim under BOR 2 risk.

11.The Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he again attended an oral hearing on 30 May 2018 before the same adjudicator for the Board during which he repeated his claim as before and without any additional facts or evidence regarding BOR 2 risk.  On 29 June 2018 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

12.In this second decision of the Board found no harm or threats had been made against the Applicant or his family since the single incident in 2005 that it is unlikely that those PML(N) supporters would still have any adverse interest in him some 13 years after that single election incident that it is not accepted that the Applicant would be at any real risk of deprivation of his life under BOR 2 risk, and that with both state protection and reasonable internal relocation within Pakistan available to the Applicant that his claim for non-refoulement protection also failed on the BOR 2 ground.     

13.On 12 July 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 from an interpreter to assist him in his appeal to the Board;

(3) that the Director used the same COI both to support and rebut the Applicant’s assertion that the Pakistan authorities are ineffective and unavailable that by such cherry-picking and biased and formulaic approach that his conclusions are highly unfair and prejudicial;

(4) that the Director and the Board had wrongly exercised their case management power by putting too much weight on COI which did not reflect the true situation in Pakistan; and

(5) that the adjudicator failed to apply high standard of fairness in failing to explain his decision to the Applicant.   

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 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 367, 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 his appeal to the Board, it is clear that his NCF 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.  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.As for Ground (3) over the Board’s improper reliance of COI in its assessment, the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the Applicant.

18.As for his complaint under Ground (4) that the Board failed to properly assess the true situation in Pakistan, again in the absence of any particulars or elaborations by the Applicant, I do not find any reasonably arguable basis in this complaint of the Applicant. 

19.As for his complaint under Ground (5) that the Board failed to explain its decision to the Applicant, that even if true cannot per se be a valid ground or basis to challenge the Board’s decision.  As such this ground is not arguable at all by the Applicant.   

20.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them 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.

21.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 22^nd 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