|
HCAL748/2017
[2018] HKCFI 996
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 748 of 2017
BETWEEN
|
RASHEED Qaisar |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
|
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 Pakistan national. He is now aged 32 (DOB: 5 March 1986).
2. On 7 July 2011, the Applicant first entered Hong Kong illegally. He lodged a torture claim. He alleged some strangers in his country had forced him to join the Taliban but he refused. Those people threatened to kill him and tried to kidnap him. So, he fled Pakistan for his life. The Applicant was released by the Immigration Department on recognizance. His torture claim was rejected on 24 November 2011. The Applicant failed to answer his recognizance. He was arrested on 17 March 2013. He indicated his wish to go back to Pakistan. He was sent back to Pakistan on 26 March 2013.
3. In April 2014, the Applicant illegally entered Hong Kong again and sought non-refoulement protection. This time, he also said the Taliban had forced him to join them. He refused and was threatened, kidnapped, tortured by the Taliban. He managed to escape some months later. Then he left Pakistan again for safety.
4. Normally, in the two-tier Unified Screening Mechanism, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) would respectively consider an applicant’s claim on 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
5. However, in the present case the Applicant's torture claim had been refused in 2011 and there was no appeal. The Director and the Board would not review the Applicant’s claim this time under similar allegations with respect to torture risk again.
6. In the ensuing two-tier screening process, the Director and the Board respectively refused the Applicant's claim on the three remaining applicable grounds: (i) persecution risk, (ii) CIDTP risk (or BOR3 risk) and (iii) life risk (or BOR2 risk).
7. On 10 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
8. Things happened in this order: –
| 2011-7-7 |
The Applicant first entered Hong Kong illegally and subsequently lodged a torture claim. |
| 2011-11-24 |
The Director rejected the Applicant’s torture claim. |
| 2013-3-17 |
The Applicant was arrested after not answering recognizance. |
| 2013-3-26 |
The Applicant was sent back to Pakistan after indicating his wish to go back home. |
| 2014-4-18 |
The Applicant entered Hong Kong again illegally from China by boat. |
| 2014-4-20 |
The Applicant was arrested. He subsequently sought non-refoulement protection. |
| 2015-9-10 |
The Director interviewed the Applicant. |
| 2015-10-16 |
The Director refused the Applicant's claim on these two applicable grounds: persecution risk and CIDTP risk (or BOR3 risk). [“the Director's decision”]. |
| 2015-10-26 |
The Applicant appealed to the Board. |
| 2017-1-9 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (or BOR2 risk). |
| 2017-1-23 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-1-26 |
The Director refused the Applicant's claim on the applicable ground of life risk (or BOR2 risk). [“the Director's further decision”] |
| 2017-2-14 |
The Applicant appeared in person before the Board for appeal. |
| 2017-10-6 |
The Board refused the Applicant's claim on these three applicable grounds: persecution risk, CIDTP risk (or BOR3 risk) and life risk (or BOR2 risk). [“the Board’s decision”] |
| 2017-10-10 |
The Applicant applied for leave for judicial review. |
Respondents
9. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the “Immigration Department” as proposed respondent.
10. In support of his application, the Applicant filed a one-page affirmation also dated 10 October 2017. He prayed for leave for judicial review against the Adjudicator who refused his appeal/petition as well as against the Director who rejected his claim. Thus, it is the Applicant’s wish to seek judicial review against both the Board and the Director.
11. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
12. In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 10 October 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 6 October 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 10 October 2017; the application against the Board’s decision was made within time.
13. Thus, there are two respondents in the current application: the Board is the first putative respondent; the Director is the second putative respondent.
No request of hearing
14. Order 53, rule 3 of the Rules of the High Court provides:
The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.
15. In Form 86, the Applicant has not requested a hearing. Nor has he stated such a wish in his affirmation. There is nothing unambiguous in the application that calls for a hearing. As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only.
Director of Immigration (the Director)
16. The Applicant had made a torture claim previously in 2011. It was rejected by the authority. The Applicant did not appeal. Therefore, that refusal decision in respect of torture claim was not reviewed this time under the Unified Screening Mechanism because the Applicant’s claim was practically the same (see paras 2-3 above). The Director this time only considered the Applicant's non-refoulement claim under the other three applicable grounds.
17. In the Director’s decision dated 16 October 2015, the immigration officer did not specifically find against the Applicant’s credibility. But even on the facts as the Applicant claimed, the officer considered that the Applicant had not suffered ill-treatment (whether physical or mental) to a minimum level of severity; the intensity of harm against the Applicant was low and any risk was small. The officer did not accept the Applicant faced a genuine and substantial risk of being subjected to ill-treatment under BOR3 or a well-founded persecution risk. The officer found there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.
18. The officer refused the Applicant’s non-refoulement claim on these two applicable grounds: persecution risk and CIDTP risk (or BOR3 risk).
19. In the Director's further decision dated 26 January 2017, the immigration officer considered the Applicant failed to establish a personal and real risk of right to life under BOR 2.
20. On 26 January 2017, the officer rejected the applicant’s non-refoulement claim on the applicable ground of life risk (or BOR2 risk).
TCAB/NCPO (“the Board”)
21. The Applicant appeared in person before the Board on 14 February 2017. He gave evidence.
22. Having heard the Applicant and viewed all the documents available, the Adjudicator found there was no evidence to show the Applicant faced a personal and real BOR2 risk, or a genuine and substantial BOR3 risk, or any risk within the definition of persecution. The Adjudicator considered there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.
23. On 6 October 2017, the Adjudicator refused the Applicant's claim on these three applicable grounds: persecution risk, CIDTP risk (or BOR3 risk) and life risk (or BOR2 risk).
Grounds for judicial review
24. In Form 86 [Folio 1] and his affirmation dated 10 October 2017 [Folio 2], the Applicant simply stated his wish to seek judicial review against the Board’s decision and the Director’s decisions. However, he did not provide specifics of his complaint.
Discussion
25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
26. 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]
27. The Director and the Adjudicator were right not to screen the Applicant's claim this time with respect to torture risk because that had been considered under similar allegations in 2011 by the Director. The Applicant made no appeal then. This time, the Applicant raised his non-refoulement claim only under similar facts.
28. The Applicant's claim was a simple one. It is apparent from the Director’s reports and the Adjudicator’s report that they were alive to the issues of the Applicant's claim. They were acquainted with the law and the facts of the Applicant's case. They independently came to their findings, conclusions and decisions which were all reasonable. They made no errors of law and there was no procedural unfairness. There is really no substance in the Applicant’s complaint against either the Director or the Adjudicator.
29. In my judgement, the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They had each engaged in proper 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 Director and the Adjudicator gave careful consideration to the Applicant's claim. They applied the law correctly. They were entitled to render those findings, conclusions and decisions as they did and those findings/conclusions/decisions were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
30. The Applicant’s complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 9th day of May 2018.
|
(Alan Ngan)
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 his solicitors must: |
|
|
|
|
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)). |
|
Sent to the Applicant on 9/5/2018
RASHEED Qaisar
Applicant’s ref. no:
Nil. |
|
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 9/5/2018
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 2456/15/10/125/P676
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1162/15 & RBCZ 9001396/16 (formerly RBCZ 2696/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
|