Ijaz Muhammad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1541/2018

[2020] HKCFI 1421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1541 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 38-year-old national of Pakistan who entered Hong Kong illegallyon 18 September 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow businessman over a property transaction dispute.  He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Rawalpindi, Punjab, Pakistan. After leaving school he assisted in his father’s property business before running his own business dealing in properties, got married and raised a family with three children in his home district.

3.In 2015 he sold a property to a fellow businessman Imran, but after transferring the property to him, Imran refused to pay the balance of the sale price to the Applicant,and even threatened to kill him if he persisted with his claim, for which the Applicant then reported the matter to the police, but when the police refused to assist as they regarded it as a personal dispute between them, and when the Applicant was advised by his brother to leave Pakistan for his own safety as Imran was an influential man with political connections,the Applicant therefore departed on 8 September 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which hecompleted a Non-refoulement Claim Form (“NCF”) on 3 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 8 June 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 Article2 (“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 Imran upon his return to Pakistan as low due to the absence of past ill-treatment from him, that it was a private monetary dispute between them without any official involvement that state protection wouldbe available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Pakistan with a large population of 200 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 in large cities such as Karachi where it would be difficult if not impossible for Imran to locate him.

6.On 23 June 2017 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 31 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found it incredible that the Applicant did not know much about property transactions despite claiming that it was his business that his claim is not considered as credible, that even if true that Imran having already got the property and its title that he had no reason to kill the Applicant, that it was a property transaction dispute between them that state/police protection as well as reasonable internal relocation within Pakistan would be available to the Applicant that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 3 August 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 the decision made by the Director and the Board regarding his non-refoulement claim had been determined unfairly in that he was not given legal representation in his appeal before the Board; and

(2) that he was not given language assistance in translating or interpreting the documents in the hearing bundle for his appeal to the Board.

9.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.

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 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) of not being given language assistance in his appeal to the Board including translating or interpreting the documents in the hearing bundle, it is clear that most of those documents would have been familiar to the Applicant as they had all been made available to him while he still had legal representation from DLS, while his NCF was completed on his instructions to his lawyer from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raisedany issue over translation or interpretation of his hearing bundle.  As such and 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.

12.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 intheir 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.

13.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 67 – 82 of its decision with the benefit of hearing his oral testimony and answersto questions raised of his claim during his appeal hearing before the Board, and 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, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact 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.

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 8^th day of July 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