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HCAL600/2017
[2018] HKCFI 1774
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 600 of 2017
BETWEEN
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Shiyad Ali |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 26 (DOB: 10 April 1992).
2. The Applicant claimed he would be harmed or killed by the Taliban.
3. The Applicant said some Taliban members came in September 2011 to tell his father that they wanted the Applicant to join them. His father refused. Those men threatened they would take the Applicant by force. Then they left.
4. About half a month later, those men came again. They assaulted the Applicant’s father and left.
5. Three days later, the Taliban men came again. This time, they were armed with guns. They assaulted the Applicant’s parents. The Applicant was not at home. Those men said they would come again for the Applicant and take him by force.
6. The Applicant’s family thought the Pakistan authorities would not offer help because they had no bribes to offer the officials.
7. The Applicant's father asked his friend to take the Applicant to another village while making arrangement for the Applicant to leave Pakistan.
8. In December 2011, the Applicant left Pakistan for China by air. He later sneaked into Hong Kong illegally on 16 December 2011. The Applicant lodged a non-refoulement claim only when he was arrested six months later in June 2012.
9. The Applicant learnt from his family in Pakistan that the Taliban were still looking for him. They Taliban assaulted his parents and damaged the properties. However, they had not asked the Applicant's brothers (aged 17 to 20) to join them. The Applicant did not know why the Taliban only targeted him.
10. The Applicant said there was widespread corruption in Pakistan. The Pakistan authorities would not protect him because he could not offer bribes to the officials.
11. The Applicant thought internal relocation was not viable since the Taliban had a wide network in the country.
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 (“TCAB/NCPO” or simply “the Board”) respectively refused 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 7 September 2017, the Applicant applied for leave for judicial review.
Chronology of events
14. Things happened in this order: –
| Dec 2011 |
The Applicant left Pakistan for China. |
| 2011-12-16 |
The Applicant entered Hong Kong illegally from China by boat. |
| 2012-6-27 |
The Applicant was arrested by the police. |
| 2012-7-1 |
The Applicant lodged a non-refoulement claim. |
| 2015-9-10 |
The Director interviewed the Applicant. |
| 2015-10-8 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2016-11-14 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2016-12-5 |
The Applicant submitted a letter to the Director as notification of his formal application for non-refoulement protection under BOR2. It contained no additional facts. |
| 2016-12-19 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-2-13 |
The Applicant appeared before the Board for appeal. |
| 2017-9-1 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-9-7 |
The Applicant applied for leave for judicial review. |
Respondent /Interested party
15. 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.
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.
17. The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
18. In the Director's decision dated 8 October 2015, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s proclaimed account of events, the officer considered the level of risk of harm by the alleged enemies was low. The officer was not satisfied the Taliban had real intention to kill the Applicant.
19. The officer found the Applicant's complained situation was not instigated, consented or acquiesced by officials or persons in official capacity. There was no involvement of the state.
20. The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the Pakistan government had taken practical steps to monitor the police and to improve their effectiveness. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
21. The officer did not accept that the Applicant had any real torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
22. 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 (BOR2 risk).
23. On 5 December 2016, the Applicant submitted a letter to the Director as notification of his formal application for non-refoulement protection under BOR2. It contained no additional facts.
24. In the Director’s further decision dated 19 December 2016, the immigration officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
25. The Adjudicator did not make specific findings on the Applicant credibility. However, even on the Applicant’s own account of events the Adjudicator was not satisfied the Applicant had been inflicted with ill-treatment to a minimum level of severity. He also found the Applicant’s perceived risk was not instigated, consented or acquiesced by public officials or persons acting in official capacity. The alleged situation was not related to race, religion, nationality, membership of a particular social group or political opinion.
26. The Adjudicator accepted there was corruption in the Pakistan police. However, he did not accept the Applicant’s accusation that the Pakistan police would not assist him. He found the Applicant had not really turned to the Pakistan authorities for help.
27. The Adjudicator considered there was no evidence to show the Taliban was still interested in recruiting the Applicant after a lapse of more than six years.
28. The Adjudicator found there was no real torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) in the Applicant’s case. He refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
29. In his affirmation, the Applicant complained the Adjudicator failed to carry out sufficient research and inquiry of the conditions of Pakistan; failed to consider relevant and updated COI; placed weight on irrelevant or outdated information; relied on information not officially recognised or simply hearsay; placed weight on irrelevant considerations and incorrect/inaccurate facts; failed to consider facts and inferences favourable to the Applicant; cherry-picked information; failed to call for psychological and psychiatric reports; failed to evaluate and make a finding of facts as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violation of human rights; failed to consider properly the issues of state protection and state acquiescence; applied the wrong standard of proof; misdirected in law and rendered unreasonable decisions.
30. The Applicant also complained about lack of legal representation. He said the Adjudicator failed to take into account he was a self-represented claimant. He further complained the hearing bundle was only served on him a few days before the appeal hearing. He therefore did not have enough time to obtain language assistance to prepare for the appeal. He said he was confused as to what happened.
31. Although the Applicant did not name the Director as respondent but only as interested party, he complained the Director failed to screen his claim with respect to BOR2 risk.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing took place on 12 June 2018. The Applicant was in person. A Pushto interpreter provided interpretation service in court.
33. The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in his affirmation. He had nothing to add.
34. The Applicant also confirmed he had submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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’.[5]
37. The Applicant complained that he received the appeal bundle only a few days before the appeal hearing.
38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[6] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[7], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
39. The Director confirmed in his letter dated 28 June 2018 that the appeal bundle was served on the Applicant on 7 February 2017. It was 6 working days (or 5 working days excluding a Sunday) prior to the Board hearing scheduled for 13 February 2017. Thus, the bundle was served on the Applicant in time.
40. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the appeal bundle was difficult or voluminous.
41. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
42. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened.
43. The Applicant complained he was not legally represented then. He had been represented by the Duty Lawyer Service up to the Director rendered his decision on 8 October 2015. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[8]
44. There are other vague complaints raised by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions 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’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
45. The Director is an interested party. The Applicant complained the Director failed to assess his claim with respect to BOR2 risk. Such accusation is wrong. The Director had considered the Applicant's claim with respect to BOR2 risk in his further decision dated 19 December 2016. The Applicant had not provided additional facts on that issue. The Director was entitled to consider the Applicant's claim with respect to BOR2 risk without holding further interview. The Director's further decision on BOR2 risk dated 19 December 2016 should be read in conjunction with his earlier decision dated 8 October 2015 with respect to the other three applicable grounds, where the Director had clearly stated his analysis of the facts and information relevant to the Applicant's claim.
46. I have reviewed the Director’s decision plus further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 44 above is true of the Director too. He made no errors of law and there was no procedural unfairness. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
47. 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 the review.
Dated 2nd day of August 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 2/8/2018
Shiyad Ali
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 2/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2431/15/10/100/P668
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1253/15 & RBCZ 9000782/16 (formerly RBCZ 626/12)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[7] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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