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HCAL653/2018
[2019] HKCFI 675
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 653 of 2018
BETWEEN
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Ali Malik Usman |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Pakistan. He is now aged 32 (DOB: 22 September 1986).
2. The Applicant claimed he would be harmed or killed by his cousin Malik Muhammad Arif (“Arif”) because he refused to sell his land and house to Arif. Arif was rich and powerful. He had connection with politicians belonging to the Pakistan Muslim League (N) [“MLN”].
3. The Applicant’s parents died in 2009. They left a piece of land with a house to their children. The Applicant and his siblings had joint ownership.
4. In mid-2010, Arif wanted to buy the land and house at a very low price. The Applicant and his siblings refused. Both sides had a fight.
5. One or two days later, while the Applicant was discussing the matter with his brother Imran, several men including ‘private soldiers of MLN’ went into Imran’s shop. They were armed with guns. They opened fire at the Applicant and his brother. The Applicant managed to escape but Imran was shot in the thigh. He needed an operation afterwards.
6. The Applicant believed the attack was instigated by Arif. He reported the matter to the police. The police investigated but failed to catch Arif.
7. The Applicant said he had to take care of his injured brother so he did not leave Pakistan immediately for safety.
8. A few months later, on 23 September 2010 the Applicant left Pakistan for China. He sneaked into Hong Kong on 5 October 2010. He was arrested on the next day. Then he lodged a torture claim[1] on 8 October 2010. It was refused by the Director of Immigration (“the Director”) on 10 February 2013. There was no evidence the Applicant appealed against the Director's 2013 decision.
9. On 17 April 2014, the Applicant raised a non-refoulement claim.
10. The Applicant said Imran had left home and stayed in other places. His sister informed him Arif had been looking for him. Arif still wanted the land and threatened to kill the Applicant if he returned to Pakistan. Arif last went to their house in January 2015. However, he and his men continued to make threats on the phone to the Applicant's family. They threatened to kill the Applicant and his family if they did not give up the land and house. The Applicant said no one was living there anymore.
11. The Applicant said the Pakistan police would not arrest Arif because Arif had bribed them.
12. In the ensuing two-tier screening process here, the Director refused the Applicant’s claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
13. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Board refused the Applicant’s claim with respect to all the four applicable grounds including torture risk.
14. On 16 April 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2010-9-23 |
The Applicant left Pakistan for China. |
| 2010-10-5 |
The Applicant entered Hong Kong illegally from China. |
| 2010-10-6 |
The Applicant was arrested by the police. |
| 2010-10-8 |
The Applicant raised a torture claim. |
| 2013-2-10 |
The Director refused the Applicant’s torture claim. (There was no evidence the Applicant appealed against the Director's 2013 decision.) |
| 2014-4-17 |
The Applicant lodged a non-refoulement claim. |
| 2015-9-16 |
The Director refused the Applicant’s claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Director's decision”] |
| 2017-5-19 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-2 |
The Applicant failed to submit additional facts by the deadline and thereafter. |
| 2017-6-7 |
The Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk. {“the Director's further decision”} |
| 2018-3-22 |
The Adjudicator without hearing refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-16 |
The Applicant applied for leave for judicial review. |
Respondents
16. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
19. In his decision dated 16 September 2015, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to those two applicable grounds.
20. In his further decision dated 7 June 2017, the Director refused the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
21. The Adjudicator considered the Applicant’s case was simple. The Applicant had already given clear statements to the Director and attended several screening interviews held by the Director. The Director had made thorough inquiry and the Applicant had been given ample opportunities to explain his case. The Adjudicator decided there was no need to hold a Board hearing. He then determined the Applicant's claim on all the available materials before him.
22. The Adjudicator noted it had been many years now since the shooting incident in mid-2010. He was not satisfied the 2010 shooting was related to Arif. He found the shooting was aimed at the Applicant's brother Imran, who was only shot in the thigh but not fatally injured. Though there was another shooting at the Applicant's house at night to scare the people inside, no one was harmed. Imran now lived safely in Pakistan. The Adjudicator did not think Arif really meant to kill the Applicant and his siblings in order to get the land and house.
23. The Adjudicator was not satisfied that Arif had connection with the Pakistan police. Nor was he satisfied that MLN was involved in the private dispute between Arif and the Applicant. The Adjudicator found there was no involvement of state actors. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence the Applicant faced any real risk. The Adjudicator also found the Pakistan government was able to provide reasonable state protection to the Applicant in any event.
24. Though the Director had not revisited the Applicant's claim with respect to torture risk (rejected in February 2013), the Adjudicator took it upon himself to consider the Applicant's claim with respect to all the four applicable grounds including torture risk. He did not accept the Applicant faced any risk that warranted non-refoulement protection. On 22 March 2018, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
25. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 18 above, I would deal with the current application in relation to the Board's decision only as the Director's decisions had gone on appeal to the Board for rehearing.
26. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
27. The Applicant complained he was not legally represented after the Director's decision. He also said he had language problem.
28. The Applicant claimed he did not receive the Director’s letter inviting him to submit additional facts and the Director's further decision. He complained the Director gave him no further interview.
29. The Applicant also complained the Adjudicator held no hearing for his appeal.
Court hearing
30. The hearing took place on 17 August 2018. The Applicant was in person. An Urdu interpreter provided service in court.
31. The Applicant said a friend helped him to prepare the documents for the current application of judicial review. He confirmed all the grounds were in the documents.
32. The Applicant also confirmed he had submitted all to the Director for his non-refoulement claim.
33. The Applicant said he had not received the Director's letter dated 19 May 2017 requesting him to submit additional information. He said at that time he lived in Tuen Mun but he had not reported that address to the Director. His reported address was a Yuen Long one.
34. The Applicant admitted in court that he would have no more to submit even if he received the Director's letter.
35. When asked what he would submit to the Adjudicator if there was a Board hearing, the Applicant simply said he would ask the Adjudicator to give him time to stay here until his problems were settled in Pakistan.
Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]
38. The Applicant complained there was no legal representation after the Director's decision. He had been represented by the Duty Lawyer Service up to the Director's decision dated 16 September 2015.
39. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
40. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
41. The Applicant complained he did not receive the Director’s letter inviting him to submit additional facts. In court, he admitted that at the material time he lived in Tuen Mun but he had not reported that address to the Director. The Applicant could blame no one if he really failed to receive letters or notices from the Director then.
42. The Applicant complained the Director gave him no further interview. He also complained the Adjudicator did not give him a hearing for his appeal.
43. In court, the Applicant admitted he had submitted all of his case to the Director. Thus, all was before the Director and later before the Adjudicator for their consideration. The Applicant admitted he would have no more to submit to the Director. He also said if there was a Board hearing, he would simply tell the Adjudicator to give him time to stay here until his problems were settled in Pakistan. The Applicant failed to show any further interview/hearing by the Director or the Adjudicator could advance his case.
44. In ST v Betty Kwan & Another, the Court of Appeal says: –
“…it does not follow from the requirement of an opportunity to make worthwhile or effective representations that there must be an oral hearing held before a decision is made. Put another way, there is no absolute right to an oral hearing. Among other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”[9]
45. The same court further states: –
“The judge then, importantly, pointed out the question of whether an oral hearing should be held is not to be decided by whether there are factual disputes, but whether an oral hearing “may well contribute to achieving a just decision”[10]
46. There was no absolute right to an oral hearing. The Applicant failed to show he had any ‘worthwhile and effective representations’ to make before the Director or the Adjudicator. In such circumstance, the Director and the Adjudicator need not hold further hearing.
47. The Adjudicator considered all of the Applicant's case as the latter could present. The Applicant was not prejudiced even though the Adjudicator did not hold any Board hearing.
48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case before the Director, which was fully before the Adjudicator too. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
49. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 18th day of March 2019
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(Henry Ng)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 18/3/2019
Ali Malik Usman
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/3/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 2286/15/9/139/P636
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1218/14 & RBCZ 9001890/17 (formerly RBCZ/2589/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] CACV115/2013, para 26
[10] Ibid., para 30
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