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HCAL467/2018
[2019] HKCFI 219
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 467 of 2018
BETWEEN
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Hassan Waseem |
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 Pakistan national. He is now aged 37 (DOB: 1 January 1982).
2. The Applicant claimed he would be killed by some people of the Muttahida Quami Movement (“MQM”). Those people tried to extort money from him.
3. The Applicant said he was a mechanic. In November 2011, five MQM members demanded him to pay a monthly protection fee of 5,000 Pakistan rupees. The Applicant indicated he had no money. The men said they would come back.
4. The Applicant did not report the matter to the police because he thought it would be of no use. MQM was the ruling party there and had great influence over the local government and police.
5. The MQM people came back in January 2012. They made the same demand. The Applicant did not pay them because he had no money. The men threatened to harm him next time. Then they left.
6. In March 2012, the MQM people came again. The Applicant was not at home. The men said nothing to the Applicant's wife and left.
7. The Applicant thought he had to leave his hometown Hyderabad because his life was at risk. He went to live with his friend in another place in Pakistan until August 2012. He learnt the MQM people had been coming to his home for him but his wife would not tell those men where he was.
8. The Applicant later moved to another place called Attock with his family and stayed there till February/March 2014. Nothing eventful happened there. The Applicant then moved back to Hyderabad, thinking his problem with the MQM people had been resolved.
9. In March/April 2014, some MQM people approached the Applicant and demanded protection money again. The Applicant refused to pay. Those people threatened to kill the Applicant next time if he still refused to pay them.
10. The Applicant was frightened. He decided to leave the country. On 8 May 2014, he left Pakistan for China.
11. On 14 May 2014, the Applicant was arrested by the police in Hong Kong. He claimed he just entered Hong Kong illegally.
12. The Applicant raised a non-refoulement protection claim on 16 May 2014.
13. The Applicant said he last contacted his wife in May 2014. He did not know the current situation in his country but he believed there was still risk for him.
14. The Applicant did not think the Pakistan government or police would help him. He also thought internal relocation was not feasible because MQM had its network in the country.
15. 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: risk of torture[1], 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].
16. On 22 March 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2014-5-8 |
The Applicant left Pakistan for China. |
| 2014-5-14 |
The Applicant was arrested by the police. He claimed he just entered Hong Kong illegally from China |
| 2014-5-16 |
The Applicant raised a non-refoulement claim. |
| 2016-2-29 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision”] |
| 2016-10-25 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2016-11-8 |
The Applicant failed to submit additional facts by the deadline and thereafter. |
| 2016-11-10 |
The Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2016-11-11 |
The Applicant appeared before the Board for appeal. |
| 2018-1-2 |
The Adjudicator refused Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-22 |
The Applicant applied for leave for judicial review. |
Respondents
18. 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.
19. 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.
20. 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
21. In his decision dated 29 February 2016, 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 refused the Applicant's claim with respect to those three applicable grounds.
22. In his further decision dated 10 November 2016, the Director did not accept the Applicant faced BOR2 risk. He refused the Applicant's claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed him on 11 November 2016. The Applicant chose not to give evidence.
24. The Adjudicator did not make specific finding on the Applicant’s credibility. However, even on the Applicant’s own account of events the Adjudicator found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. 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 of state instigation, consent or acquiescence of any form. The Adjudicator considered relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant. The Adjudicator found the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 2 January 2018, he refused the Applicant's claim with respect to all the four applicable grounds.
Grounds for judicial review
25. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 20 above, I shall deal with his application in relation to the Board's decision only because the Director's decisions had gone on appeal to the Board as rehearing.
26. The Applicant complained he had no legal representation after the Director's decision dated 29 February 2016. He also complained there was no language assistance.
27. The Applicant complained the Adjudicator ignored country-of-origin information ("COI") related to the influence and atrocious activities of MQM.
28. The Applicant also criticised the Adjudicator for allowing the Director to be excused from the Board hearing on 11 November 2016.
Court hearing
29. The hearing took place on 25 July 2018. The Applicant was in person. An Urdu interpreter provided service in court.
30. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
31. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. 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]
34. The Applicant complained he had no legal representation after the Director's decision dated 29 February 2016.
35. 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.
36. 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 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.
37. The Applicant complained the Adjudicator ignored country-of-origin information ("COI") related to the influence and atrocious activities of MQM.
38. The Adjudicator had a balanced consideration of relevant COI. He was satisfied there was reasonable state protection in Pakistan.[9] His finding was not Wednesbury unreasonable.
39. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearing on 11 November 2016. The Applicant cannot show how the Director’s absence would prejudice his appeal.
40. 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 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
41. 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 1st day of February 2019
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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
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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 1/2/2019
Hassan Waseem
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 1/2/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3222/16/3/27/P862
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2224/15 & RBCZ 9000741/16 (formerly RBCZ/1864/14)
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] 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] The Board's decision, paras 39-45.
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