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HCAL683/2017
[2018] HKCFI 994
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 683 of 2017
BETWEEN
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MAHMOOD Mirza Muhammad Tahir |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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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 Pakistan national. He is now aged 39 (DOB: 10 January 1979).
2. The Applicant arrived in Hong Kong illegally on 17 August 2014. He was arrested three days later. Then he lodged a non-refoulement claim.
3. The Applicant claimed he would be harmed or killed by Mohammed Sharif (“MS”) and his men in Pakistan because MS wanted to occupy the land belonging to the Applicant's father, and also because the Applicant supported the All Jammu and Kashmir Muslim Conference.
4. The claimant said his father was murdered by MS in 1984. MS had connections with the Pakistan People’s Party (“PPP”). He had arguments and fights with the Applicant’s father over political differences and also because MS wanted to occupy the land belonging to the Applicant’s father. One day in 1984, MS came with some men armed with weapons. They killed the Applicant’s father. At that time, the Applicant was only five years old. The Applicant believed the police had a deal with MS so the latter was not duly punished.
5. The Applicant grew up. Since 1995, he often had arguments with MS over politics and his father’s death. There were fights and the Applicant was injured. He reported the matter to the police but the police took no action.
6. The Applicant continued to gain in political influence. In 2006/2007, he was ambushed by MS and others. MS fired a pistol at the Applicant but just hurt the latter’s finger. The Applicant managed to escape. He reported the matter to the police. Again, the police did not take action because of MS’s influence.
7. In 2009, the Applicant was again assaulted by MS and others. The Applicant was injured. Again, he reported the matter to the police but no action was taken by the police.
8. The Applicant moved to live elsewhere in Pakistan. However, he received threatening phone calls from MS and MS’s relatives. They threatened to kill the Applicant if he would return to his home village. The Applicant also learnt that MS had been to his home a few times to look for him and made threats to kill him. The Applicant did not report these death threats to the authorities because he thought it would be of no use.
9. In 2013, the Applicant heard from a villager that MS really wanted to kill him and was looking for him.
10. The Applicant finally left Pakistan on 19 April 2013 for safety. He travelled by air via Bangkok and landed in China. However, he did not seek protection there. He entered Hong Kong illegally from China by boat on 17 August 2014. He was arrested three days later by the police. He then sought non-refoulement protection.
11. In the ensuing two-tier screening process (“the 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”) respectively refused the 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].
12. On 26 September 2017, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2013-4-19 |
The Applicant flied from Pakistan via Bangkok to China. |
| 2014-8-17 |
The Applicant entered Hong Kong illegally from China by boat. |
| 2014-8-20 |
The Applicant was arrested by the police. |
| 2014-8-23 |
The Applicant raised a non-refoulement claim. |
| 2016-3-16 |
The Director held a screening interview with the Applicant. |
| 2016-5-18 |
The Director refused the Applicant’s claim on three applicable grounds: (i) risk of torture, (ii) risk of persecution and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk). |
| 2016-5-24 |
The Applicant appealed to the Board. |
| 2017-6-12 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-26 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-7-5 |
The Director refused the Applicant’s claim on the fourth applicable ground: risk of violation of the right to life (BOR2 risk). |
| 2017-8-14 |
The Applicant appeared before the Board for appeal hearing. |
| 2017-9-19 |
The Adjudicator refused Applicant’s claim on all the four applicable grounds. |
| 2017-9-26 |
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 complaint on a rehearing basis.
15. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents.
16. In support of his application, the Applicant submitted a 10-page affirmation [Folio 2] making allegations against both the Board and the Director.
17. In court, the Applicant confirmed that he wanted to sue both the Board and the Director.
18. 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]
19. In the present case, the Director’s decision dated 18 May 2016 was more than three months old by the time the Applicant filed his current application on 26 September 2017. However, the Applicant should not seek judicial review against any Director’s decision before the Board rendered its appeal decision on 19 September 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the said Director’s decision albeit late on 26 September 2017; the application against the Board's decision and the Director's further decision dated 5 July 2017 were made within time.
20. As such, there are two respondents in the current application: the Board is the first putative respondent; the Director is the second putative respondent.
Director of Immigration (the Director)
21. In the Director’s decision dated 18 May 2016, the immigration officer did not accept that the ill-treatment (whether physical or mental) inflicted upon the Applicant by MS and his men had attained a minimum level of severity. The officer did not think MS and his men had any real intention to seriously harm or kill the Applicant. The risk of harm from MS and his men was not as serious and high as the Applicant claimed. There was no evidence of state instigation. On the other hand, reasonable state protection and internal relocation were available to the Applicant in Pakistan. The officer did not accept the Applicant would face a genuine and substantial BOR3 risk. He considered the Applicant’s fear of persecution risk was not well-founded. The officer also found that the Applicant’s case was not one of torture risk.
22. The officer refused the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).
23. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 26 June 2017 or thereafter.
24. In the Director’s further decision dated 5 July 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2).
25. The officer refused the Applicant’s non-refoulement claim on the fourth applicable ground: life risk (or BOR2 risk).
TCAB/NCPO (the Board)
26. In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case. He found the Applicant’s evidence vague and inconsistent in many places. He did not believe the Applicant’s risk claim.
27. However, the Adjudicator considered that even on the facts as the Applicant claimed, the latter still failed to make out a case that warranted non-refoulement protection. The Adjudicator found the feared situation was not from state instigation. There was also no state acquiescence. The Adjudicator found no torture risk. He also did not accept there was a genuine substantial BOR2 risk or BOR3 risk, or any well-founded persecution risk. On the other hand, the Adjudicator considered there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.
28. On 19 September 2017, the Adjudicator refused the Applicant’s non-refoulement claim on all the four applicable grounds.
Court hearing
29. In Form 86, the Applicant requested a hearing. The hearing took place on 26 April 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.
30. The Applicant said he had submitted all the available information and materials relevant to his claim to the Director and the Board for their consideration.
31. The Applicant said a friend helped him to prepare Form 86 and the 10-page affirmation, which contains all the grounds for the current application for judicial review.
32. The Applicant said he had studied up to the 10th class in Pakistan. In school, he had to read and write English. He could read and understand English. He confirmed that he understood what the court said in English without the Interpreter’s assistance though he could not convey himself properly in English.
Grounds for judicial review
33. The Applicant has these complaints:
(a) lack of legal representation;
(b) lack of language assistance;
(c) no reasons given by the Director in his further decision dated 5 July 2017;
(d) lack of fair hearing; and
(e) wrongful exercise of case management power.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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]
Ground (b): Lack of language assistance
36. The Applicant complained that he had not been given sufficient interpretation/translation assistance.
37. In court, the Applicant admitted he had a friend to prepare Form 86 and the 10-page affirmation for him for judicial review. They were quite well-presented. Apparently, the Applicant could find someone to help him to deal with the documents of his claim and to provide him with interpretation/translation assistance. I am sure it was the case at all material times. Also, the Applicant confirmed he had a certain grasp of English though he could not speak the language properly. I find the Applicant has much exaggerated his problem of understanding and dealing with the English documents relating to his claim. Ground (b) fails.
Ground (a): Lack of legal representation
38. The Applicant complained that he had not been provided with sufficient legal assistance.
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.[7]
40. The Applicant had got legal representation from the Duty Lawyer Scheme up to the Director’s first decision stage. He could not point out to this court how his case was undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail.
Ground (c): No reasons given by the Director in his further decision dated 5 July 2017
41. The Applicant complained that the Director did not give reasons for his further decision dated 5 July 2017.
42. The Director’s further decision dated 5 July 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 18 May 2016, which contained a detailed analysis of the Applicant's case. The Applicant had not submitted additional facts for the Director's consideration of BOR2 risk, which was only a further issue to be considered by the Director on the basis of the same facts and evidence already analysed carefully in the previous decision dated 18 May 2016. It was sufficient for the Director to express as he did in his further decision dated 5 July 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director did not need to recite all the facts and analyses already stated clearly in the previous decision dated 18 May 2016. Ground (c) fails.
Ground (d): Lack of fair hearing
43. The Applicant here again complained he had no legal assistance and language assistance. That is really repetition of Ground (a) and Ground (b), which have already been dealt with.
44. The Applicant also criticised the Director for assuming that he chose not to reply to the Director's letter dated 12 June 2017, which invited him to submit additional facts for the consideration of BOR2 risk. The Applicant further criticised the Director for not giving him a supplementary screening interview before the Director rendered his further decision on 5 July 2017.
45. The Applicant never explained why he did not reply to the said letter; he did not say in any clear terms that he had not received the letter. In any event, the Applicant confirmed in court that he had provided all the information and materials relevant to his claim to the Director and the Board. He failed to demonstrate to this court what more he could have contributed to his case if a further interview was held by the Director.
46. The Applicant complained of unfairness. Having read the Director's decision plus further decision and the Board’s decision, I find both the Director and the Board had adhered to the high standards of fairness required of the Applicant's non-refoulement claim. Ground (d) fails.
Ground (e): Wrongful exercise of case management power
47. Though he termed this ground as something related to wrongful case management, the Applicant really expressed dissatisfaction with the Adjudicator’s finding him incredible. That had nothing to do with case management.
48. The Adjudicator found the Applicant’s evidence vague and inconsistent in many places. He did not believe his risk claim. It was open to the Adjudicator to make those findings, conclusions and decisions in his report dated 19 September 2017 which were all reasonable.
49. In my judgement, both 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. There is no substance in the Applicant’s complaint against the Director or the Adjudicator, who had each engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They had considered the Applicant's case carefully and 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
50. 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.
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(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: |
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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 9/5/2018
MAHMOOD Mirza Muhammad Tahir
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 9/5/2018
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3750/16/5/168/P977
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 101/16 & RBCZ 9002298/17 (formerly RBCZ 2706/14)
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.
[7] CACV 284/2017 Re: Paswan Shibu Lal, par 21.
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