|
HCAL122/2018
[2018] HKCFI 1994
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 122 of 2018
BETWEEN
|
Haider Sufyan |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
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 35 (DOB: 12 August 1983).
2. The Applicant claimed that he would be killed by the family of Usman Iqbal (“Usman”) because of the love relationship between the Applicant's cousin and Usman’s sister. Usman’s family were rich and powerful.
3. The Applicant first raised a torture claim on 23 May 2007 after he had come to Hong Kong earlier somehow. He withdrew his torture claim on 4 March 2013 and went back to Pakistan voluntarily on 12 April 2013.
4. The Applicant said after he had returned to Pakistan in April 2013, he found his cousin Akash falling in love with Usman’s sister. Such romance was forbidden as only pre-arranged marriage would be allowed. Nevertheless, the Applicant helped his cousin to meet the girl.
5. In late 2013, Usman’s family discovered the secret love affairs. They asked Akash to stay away from the girl. Later, there was a fight between Akash and Usman.
6. A week later, two unknown men told the Applicant that he would be beaten up if he continued to help Akash. The Applicant believed those men were sent by Usman.
7. A month later, Akash was shot dead. The Applicant believed the murder was instigated by Usman’s family. Akash’s father reported the matter to the police. However, the police only asked for bribes and made no investigation.
8. Two weeks later, somebody fired gunshots at the Applicant. The Applicant was not injured but his other cousin Awais was hurt. The Applicant again believed the shooting was instigated by Usman’s family. He did not report the matter to the police because he thought the police were incompetent and corrupt. The Applicant believed Usman’s family had bribed the police so the police would only listen to them.
9. A week later, the Applicant was confronted by the two men who had threatened him before (see paragraph 6 above). The men threatened to kill him if he would not stop helping his cousin’s family.
10. The Applicant received a number of threatening phone calls afterwards. Again, he did not seek assistance from the police.
11. In early 2014, the Applicant moved to live with his friend in Lahore. He heard Usman’s family were constantly threatening his cousin’s family.
12. The Applicant feared his enemies would come to Lahore to find him. He left Pakistan for China in March 2014. He sneaked into Hong Kong on 2 April 2014 and was arrested. He raised a non-refoulement claim on 4 April 2014.
13. In October 2014, the Applicant heard his cousin Awais had killed Usman. Awais told the Applicant that Usman’s family believed the Applicant was involved in the killing. The Applicant feared his enemies would seek revenge on him as they regarded he had been helping his cousin’s family all along.
14. The Applicant did not think the Pakistan police could protect him. He also said internal relocation was not viable because he lacked the means to do so and Usman’s family could find him in the country.
15. In the ensuing two-tier screening process here (“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 with respect to all the four applicable grounds: (i) torture risk[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].
16. On 26 January 2018, the Applicant applied for leave for judicial review.
Chronology of events
17. Things happened in this order: –
| 2007-5-23 |
The Applicant raised a torture claim after he had come to Hong Kong earlier. |
| 2013-3-4 |
The Applicant indicated to the Immigration Department that his problem in Pakistan had been resolved. He wished to go home. |
| 2013-4-12 |
The Applicant returned to Pakistan voluntarily. |
| Mar 2014 |
The Applicant left Pakistan again. |
| 2014-4-2 |
The Applicant entered Hong Kong from China illegally. |
| 2014-4-4 |
The Applicant lodged a non-refoulement claim. |
| 2016-5-18 |
The Director interviewed the Applicant. |
| 2016-5-25 |
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”] |
| 2017-6-21 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk). |
| 2017-7-5 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-9-15 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”] |
| 2017-10-24 |
The Applicant appeared before the Board for appeal. |
| 2017-12-29 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-1-26 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 complaint on a rehearing basis.
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
20. In the Director’s decision dated 25 May 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s own account of events the officer found the level of risk of harm against the Applicant was low. The Applicant had not been inflicted with any harm or ill-treatment. His complained situation was not instigated or tolerated by the state. The officer found there was no evidence that the Applicant would be located by his alleged enemies.
21. The officer accepted 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. There were channels to complain the police and alternative avenues to seek justice in the country. The officer considered reasonable state protection was available to the Applicant. He found internal relocation was also viable.
22. The officer did not accept the Applicant faced any torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
23. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of a fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
24. In the Director’s further decision dated 15 September 2017, the officer considered the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to the fourth ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
25. The Adjudicator found the Applicant's claim lacked proof and there were a number of incredible and inconsistent features in his allegations.
26. The Adjudicator found that even on the Applicant's own account of events, more than four years had elapsed since the alleged problem started in April 2013. Even the Applicant himself agreed that, in hindsight, it was not necessary for him to travel from Pakistan to Hong Kong. [5]
27. The Adjudicator found the Applicant had no basis to distrust the Pakistan police. She was satisfied reasonable state protection and internal relocation were available to the Applicant.
28. The Adjudicator considered the Applicant failed to prove there was any real risk that warranted non-refoulement protection. She refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds for judicial review
29. In his affirmation, the Applicant complained the Adjudicator failed to meet the greater care and duty owed to him as a self-represented applicant; being unfair; cherry-picked COI; rendered reasonable decisions and failed to explain her decision.
30. The Applicant also complained he was not provided with legal representation for appeal to the Board.
31. The Applicant further complained he was not given a translation copy of the non-refoulement form (“NCF”). He therefore could not find out if the interpreter had been translating the basis of his claim properly.
32. The Applicant said he had not received the Director's letter dated 21 June 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He did not understand the documents sent to him by the Director because there was no translation. He also said the interpreter in the appeal hearing did not explain to him properly that there was a decision on BOR2 risk and how that decision was reached. The Applicant accused the Director failed to provide proper explanation on the BOR2 risk decision.
33. The Applicant lastly complained the Director was absent from the appeal hearing.
Court hearing
34. In Form 86, the Applicant requested a hearing. The hearing took place on 20 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.
35. The Applicant said he only knew a little English. A friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the affirmation. He had nothing to add.
36. The Applicant also confirmed he had stated his case fully to the Director and the Adjudicator.
Discussion
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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]
39. The Applicant complained he had not been provided with legal assistance for his appeal to the Board.
40. 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] There is no evidence the Applicant had re-applied for legal assistance from the Duty lawyer Service after the Director's decision. He also cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
41. The Applicant complained he was not given a translation copy of the non-refoulement form (“NCF”). He therefore could not find out if the interpreter had been translating the basis of his claim properly. He said he did not understand the documents sent to him by the Director because there was no translation.
42. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal 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 English documents.
43. Even though the Applicant had a friend who could provide him with language assistance, the Applicant by now still failed to show there was indeed any mistranslation/misinterpretation in the NCF. His complaint has no substance at all.
44. The Applicant said he had not received the Director's letter dated 21 June 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He also accused the Director failed to provide proper explanation on the BOR2 risk decision.
45. The Director's letter dated 21 June 2017 was sent to the Applicant. There was no evidence of undelivered or misplaced post. If the Applicant had not received that letter as already sent out by the Director, it was beyond the Director’s control. The Applicant, however, failed to show this court what he would or could have submitted on the BOR2 issue. In fact, he confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Thus Applicant had not been prejudiced even if he really had not received that letter.
46. The Applicant said the interpreter in the appeal hearing did not explain to him properly that there was a decision on BOR2 risk and how that decision was reached. There was simply no evidence of such bare assertion from the Applicant.
47. The Applicant accused the Director failed to provide proper explanation for the BOR2 risk decision.
48. The Director's further decision dated 15 September 2017 on BOR2 risk must be read in conjunction with the Director's previous decision dated 25 May 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 15 September 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 the right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 25 May 2016.
49. The Applicant complained the Adjudicator did not give proper explanation for refusing his non-refoulement claim. That is not true. The Adjudicator’s decision dated 29 December 2017 was clear enough in all aspects, including the issues of reasonable state protection and internal relocation in paras 75-82 and paras 83-85 thereof respectively.
50. The Applicant criticised the Director for not attending the appeal hearing before the Adjudicator on 24 October 2017. However, the Applicant failed to show how the Director’s excused absence would prejudice his appeal.
51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied she had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who 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 and applied the law correctly. She had considered the Applicant's case carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
52. 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 3rd day of September 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 3/9/2018
Haider Sufyan
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 3/9/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3833/16/6/23/P996
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 97/16 & RBCZ 9002452/17 (formerly RBCZ/1599/14)
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] The Adjudicator’s Report, para 74.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
|