Iqbal Ansarapplicant v. Torture Claims Appeal Board

HCAL 1005/2018

[2021] HKCFI 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1005 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 on 9 June 2009 and was arrested by police on the same day. 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 the local supporters of rival political party Pakistan Muslim League (Q) (“PML(Q)”). He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Alam Garh, Tehsil & District Gujrat, Punjab, Pakistan. After leaving school, he worked in various jobs in his home village, and followed his family’s tradition to support the political party Pakistan Peoples Party (“PPP”) without holding any post in the party and just regularly attended their local activities, during which he and his fellow PPP supporters were from time to time approached by the local PML(Q) supporters to invite them to join their party, and when they refused, they would be threatened by the PML(Q) supporters, and were beaten by them on a few occasions.

3.To avoid further threats and harassments form those local PML(Q) supporters, the Applicant on 6 June 2009 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 6 March 2015 the Director of Immigration (“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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those local PML(Q) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that the Applicant had been specifically targeted by those PML(Q) supporters given that he was just a PPP supporter without any post in that party, 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 Islamabad or Rawalpindi where it would be difficult if not impossible for those local PML(Q) supporters to locate him.   

6.By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicant’s claim in the absence of any response to an earlier invitation for him to submit any additional facts which may be 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”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 18 March 2015, and for which he attended an oral hearing on 11 March 2016 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 17 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board doubted after all these years that those PML(Q) supporters would still have any adverse interest in the Applicant being just a supporter without any post in his party, that given the fact that PML(Q) is no longer a major party in his home district and will not pose any risk to the Applicant upon his return to Pakistan, and that in any event with reasonable internal relocation available for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

9.On 4 June 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 he was not given any legal representation for his claim on BOR 2 Risk before the Director or for his appeal before the Board; and

(2)  that he was not provided language assistance for his claim on BOR 2 Risk or in his appeal to the Board as he cannot read or write English.   

10.For his complaint in Ground (1) of not being provided with legal representation for his claim under BOR 2 Risk before the Director or 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.

11.The Applicant already had the benefit of legal representation in presenting his case under torture risk, BOR 3 risk and persecution risk 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 but during which he never submitted any additional facts or representation which may be relevant to the assessment of his BOR 2 Risk, and not even now in his application before me has he done so, and based on existing materials and the case advanced by him, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground in his case, or that its assessment would be the same as for his other grounds. As such there is no merits in this complaint of the Applicant, nor is it reasonably arguable for his intended application.

12.As for his complaint under Ground (2) of not being provided with language assistance regarding his BOR 2 Risk or in his appeal to the Board, for the same reasons as stated above, based on his own case the assessment of BOR 2 Risk would be the same as that for his other risks, and in the absence of any additional facts or representations that the Applicant may have put before the Board which could advance his case under the BOR 2 risk ground, or 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 do not find this complaint of his reasonably arguable either.

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 9^th day of April 2021.

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