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HCAL689/2018
[2019] HKCFI 2054
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 689 of 2018
BETWEEN
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Hussain Imtiaz |
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 33 (DOB: 15 May 1986).
2. The Applicant claimed he would be killed by his grandfather’s cousin Mir Afzal (“MA”) because of a land dispute. MA was a supporter of the Pakistan Muslim League-Q (“PMLQ”).
3. The Applicant said his grandfather had given him a piece of farmland. MA farmed on it and gave 25 per cent of the produce to the Applicant's family.
4. In 2007, the Applicant and his father wanted to build a cattle farm on the land. MA was asked to leave but he refused.
5. MA used forged documents to claim title of the land. He brought some family members to put construction materials on the land. They assaulted the Applicant and injured him. The Applicant had to be hospitalised for several days.
6. The Applicant and his father complained to the police. The police made investigation but arrested no one.
7. The Applicant’s father filed a lawsuit against MA in the civil court. He won the case but MA appealed. There had not been any result coming out of the appeal.
8. MA made death threats to the Applicant three times to force him to give up the land and the lawsuit.
9. The Applicant left home to stay with a friend in late 2007 for some months. He later saw two PMLQ people that he believed to be associated with MA. He moved further to stay with his cousin for another several months. His cousin was beaten up by some people, who demanded to know where the Applicant was. The Applicant knew MA was still looking for him. He moved to live elsewhere.
10. The Applicant finally left Pakistan on 23 May 2009 for China. On 2 June 2009, he entered Hong Kong illegally by boat. He was intercepted and arrested by the police that day. He lodged a torture claim on 4 June 2009.
11. The Applicant said his civil case against MA in the Pakistan court was still pending.
12. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 20 April 2018, the Applicant applied for leave for judicial review.
Respondents
14. 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.
15. 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.
16. 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 decision. I shall deal with his application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 6 March 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s claim with respect to those three applicable grounds.
18. In his further decision dated 9 August 2017, the Director rejected the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed him on 8 February 2018.
20. The Adjudicator noted the Applicant left Pakistan for China and stayed there for about 10 days. Yet, he did not seek asylum then. Instead, he tried to look for a job. He told the Adjudicator that if he had found a job in China, he would not come to Hong Kong. The Adjudicator found the Applicant left Pakistan for economic reason (looking for a job) rather than fleeing from his alleged enemy MA. The Adjudicator was not satisfied the Applicant was a genuine non-refoulement protection seeker.
21. Even on the Applicant's account of events, the Applicant considered the Applicant's dispute with MA was only private in nature. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). He had not been inflicted with ill-treatment to a minimum level of severity. There was no state instigation or acquiescence of any kind. The Applicant was not targeted by the Pakistan state. The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.
22. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 13 April 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
23. In his affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 16 above, I would deal with his application in relation to the Board's decision only.
24. The Applicant complained he had no legal representation and language assistance for his appeal.
25. The Applicant said the Adjudicator failed to properly consider COI regarding state protection. The Board's decision was an unfair judgment and formula work. The Applicant said the Adjudicator wrongly considered he left Pakistan for economic reasons.
Court hearing
26. The hearing took place on 6 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
27. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.
28. The Applicant said he had not received the Director’s letter dated 12 May 2017 inviting him to submit additional facts or information. If he did, he would submit three sets of documents: a medical report, a land document and a Pakistan police report. The Applicant said he was detained between October and December 2016. His friend took care of his properties and lost those documents then. Thus he was unable to produce them to the Adjudicator during the appeal hearing on 8 February 2018. Apart from those documents, he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. 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]
31. The Applicant said he had not received the Director’s letter dated 12 May 2017 inviting him to submit additional facts or information. If he did, he would submit three sets of documents: a medical report, a land document and a Pakistan police report. He said his friend took care of the documents but lost them while he (the Applicant) was detained between October and December 2016.
32. What the Applicant alleged in court was not mentioned in his affirmation. It was also inconsistent with what he told the Adjudicator. He told the Adjudicator that he had submitted his medical report and the police FIR (First Information Report) to the Director. However, there were no such documents on record.
33. I do not accept the Applicant’s allegation that he would have the said documents to produce to the Adjudicator if they had not been lost during fire when his friend kept the documents for him.
34. The Applicant complained he had no legal representation for his appeal.
35. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 6 March 2015.
36. 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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
37. The Applicant raised his language problem.
38. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
39. In the current application, a friend helped the Applicant 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 being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
40. The Applicant complained the Adjudicator failed to properly consider COI regarding state protection. He also said the Board's decision was an unfair judgment and formula work. He said the Adjudicator in para. 31 of the Board's decision wrongly referred to his delay in approaching the police when in fact he was arrested in Hong Kong on the same day as he came here from China.
41. The Applicant was misconceived. The Adjudicator only talked about a legal principle in para. 31 of his report. He was certainly aware the Applicant was arrested on the same day as he arrived in Hong Kong.[10] The Adjudicator did not consider the Applicant was late in approaching the Hong Kong police. He referred to the Applicant's failure to find the Chinese police for help when he stayed there for 10 days.
42. The Applicant told the Adjudicator that if he had found a job in China, he would not come to Hong Kong.[11] The Adjudicator was entitled to conclude the Applicant left Pakistan for economic reason and thus not a genuine non-refoulement protection seeker.
43. The Adjudicator had considered the Applicant’s case in depth. He had grounds to conclude reasonable state protection and internal relocation were available to the Applicant.
44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. 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
45. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 20th day of August 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
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 20/8/2019
Hussain Imtiaz
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 20/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1214/15/3/134/P383
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1200/13 & RBCZ 9001606/17 (formerly RBCZ 1454/09)
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] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] The Board's decision, para 1.
[11] Ibid., para 32.
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