Imran Hussain v. Torture Claims Appeal Board and Another

HCAL 946/2018

[2020] HKCFI 2341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 946 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 31-year-old national of Pakistan who entered Hong Kong illegally in mid-August 2015 and was arrested by Immigration Department on 5 November 2015.  He then raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousins over a land dispute in his home district.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Jhelum, Pakistan.  After his father passed away, he and his mother were supported by his cousins who were allowed to farm in his father’s land, but in 2010 his cousins demanded that the land be transferred to them in return for having supported his family all these years, and when the Applicant refused, they assaulted him on one occasion with wooden sticks that he lost consciousness and was subsequently taken to the hospital for medical treatment.

3.Upon his discharge from the hospital, the Applicant continued to receive threats and harassments from his cousins over their demand for the land, and to avoid further assaults, the Applicant therefore fled to Karachi where he stayed for 5 years without incidents, but one day in mid-2015 when he heard that his cousins were still looking for him, he decided it was no longer safe to remain in Pakistan, and so in mid-August 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the Immigration Department he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 20 January 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private and personal land dispute without any official involvement that state/police protection would be 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 201 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 in Pakistan away from his home district in large cities such as Lahore or Karachi where he had stayed before for years without incident and where it would be difficult if not impossible for his cousins to locate him.   

6.The Applicant then 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 12 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 18 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found such inconsistencies, discrepancies and contradictions in the Applicant’s account of events occurred in Pakistan prior to his departure that it doubted the credibility of his claim, but that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.

8.On 28 May 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 for his appeal before the Board;

(2) lack of language assistance for not providing him with any translation of his documents for his appeal before the Board; and

(3) that it was unreasonable for the Board to reject his credibility simply because he was unable to remember the date when he was assaulted by his cousins or that he could identify the transfer documents notwithstanding his limited education.   

9.For his complaint under 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.

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 provided with a translation of his documents for his appeal before the Board, it is clear that he should have been familiar with most of the documents when he was still represented by DLS, while his NCF was completed on his instructions to his legal representation, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or requested for the same.  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.Regarding his Ground (3) as to the Board’s finding on his credibility, clearly the Board did not just rely on those matters for its determination of that issue as evidenced by its thorough and detained analysis and reasoning set out in paragraphs 40 – 42 of its decision and with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing.  As such I do not find any reasonably arguable basis to challenge or interfere with this finding of the Board. 

13.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.

14.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.     

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 21^st day of September 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