AASHIQ KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL792/2017

[2018] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 792 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a Pakistan national. He is now aged 41 (DOB: 15 March 1977).

2.  The Applicant claimed that he belonged to the Pakistan People’s Party  (“PPP”). He would be harmed or killed by Rashid Khan (“Rashid”) or other supporters of the Pakistan Muslim League (Nawaz) [“PML(N)”] if he was refouled to Pakistan.

3.  The Applicant said he supported the PPP. Rashid was living in the neighbouring village. In mid-March 2012, Rashid called the Applicant to persuade him to join PML(N). The Applicant refused. The next day, Rashid called the Applicant again and said angrily that the Applicant would get into trouble if he did not agree to join PML(N).

4.  In April 2012, Rashid and others stopped the Applicant on the road. Rashid threatened to kill the Applicant if he still refused to join PML(N). The Applicant was assaulted. He later reported the matter to the police. However, the police ignored his complaint and gave no reasons. The Applicant went to a member of the National Assembly for help but he did not get any assistance either.

5.  A few days later, Rashid called the Applicant to threaten him again. The Applicant was in absolute fear. He went to the same police station to report the matter but the police again refused to accept his complaint. The police said Rashid was a powerful man due to his connection with PML(N). The police even asked the Applicant to listen to Rashid. They just told the Applicant to leave the police station.

6.  In the circumstance, the Applicant left his village. He went to live in another place called Rawalpindi from April/May 2012 to July 2013. The stay there was uneventful but the Applicant noticed some people were constantly following him. He felt it was no longer safe to stay in Pakistan. He left the country for China and stayed there for some weeks. The Applicant did not raise any non-refoulement claim in China. When he felt safe to return to Pakistan, he went back to Karachi to stay with a friend called Shabir. There he stayed for 8 months until someone threatened Shabir not to house him. The Applicant then returned home briefly before he moved to Karachi again to stay in a guesthouse. Shabir told the Applicant that somebody was enquiring his whereabouts. The Applicant felt it was not safe to remain in Pakistan, so he left again for China on 3 December 2013. He finally sneaked into Hong Kong by boat from China on 10 January 2014.

7.  In Hong Kong, the Applicant heard from his family in Pakistan that Rashid still harassed them and threatened he would not spare the Applicant.

8.  The Applicant had no confidence in the Pakistan police. He thought the police would not take action against Rashid because Rashid was a member of the ruling party PML(N).

9.  The Applicant considered internal relocation not viable. He said PML(N) members had an extensive network in the country.

10.  In the two-tier Unified Screening Mechanism 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].

11.  On 20 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

12.  Things happened in this order: –

2013-12-3	The Applicant left Pakistan again for China.
2014-1-10	The Applicant entered Hong Kong illegally by boat from China.
2014-2-6	The Applicant surrendered to the Immigration Department.
2014-4-7	The Applicant lodged a non-refoulement claim.
2017-5-10	The Director interviewed the Applicant.
2017-5-24	The Director refused the Applicant’s claim with respect to the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (or BOR2 risk).
2017-10-4	The Applicant appeared before the Board for appeal hearing.
2017-10-13	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds.
2017-10-20	The Applicant applied for leave for judicial review.

Respondents

13.  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.

14.  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.  The Board is the first putative respondent; the Director is the second putative respondent.

15.  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]

16.  The Director's decision dated 24 May 2017 was more than three months old by the time the Applicant filed his current application on 20 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 13 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 albeit late on 20 October 2017; the application against the Board's decision was made within time.

Director of Immigration (the Director)

17.  In the Director’s decision dated 24 May 2017, the immigration officer found the level of risk of harm against the Applicant by Rashid was low; any future risk was small. He found no evidence that Rashid’s threats would materialise. The officer did not accept Rashid had real intention to kill the Applicant or to harm him severely. The alleged ill-treatment inflicted upon the Applicant had not attained a minimum level of severity. The officer found the Applicant had exaggerated his fear.

18.  Although the relevant COI showed there was corruption in Pakistan, the officer was satisfied that reforms had been ongoing. He did not accept there was collaboration between Rashid and the state. Nor did he accept the state could not offer protection to the Applicant. The officer found reasonable internal relocation was also available to the Applicant.

19.  The officer did not accept the Applicant would face a real and personal BOR3 risk or any real BOR2 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. He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (or BOR2 risk).

TCAB/NCPO (the Board)

20.  In his report, the Adjudicator set out the facts and the law clearly.  He was alive to the issues of the Applicant’s case. 

21.  The Adjudicator found it implausible that Rashid would target the Applicant, who was just a low-level supporter of PPP. He found the Applicant's evidence shifting, inconsistent and implausible. The Adjudicator did not find the Applicant credible. He considered the Applicant had fabricated his claim of risk. He did not accept the Applicant would face any real risk if he was refouled to Pakistan.

22.  In light of his finding that there was no risk facing the Applicant which warranted non-refoulement protection, the Adjudicator did not think it was necessary for him to discuss internal relocation. He also did not go on to discuss state protection either.

23.  On 13 October 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds for judicial review

24.  In his affirmation, the Applicant had these complaints: –

(a)  Lack of legal representation.

(b)  Lack of language assistance.

(c)  Wrongful exercise of case management power.

(d)  Lack of fair hearing.

Court hearing

25.  In Form 86, the Applicant requested a hearing.  The hearing took place on 3 May 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.

26.  The Applicant confirmed he had submitted all the available information and materials relevant to his claim to the Director and the Board for their consideration.

27.  The Applicant said he knew only a little English. A friend working in the legal field helped him for free to prepare Form 86 and the affirmation, which contained all the grounds for the current application for judicial review. He had no elaboration or submission to make.

Discussion

28.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29.  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 (a): Lack of legal representation

30.  The Applicant complained that he had not been provided with sufficient legal assistance. He had legal assistance from the Duty Lawyer Service up to the Director's decision dated 24 May 2017 but not thereafter.

31.  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] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a).

Ground (b): Lack of language assistance

32.  The Applicant complained that he had not been given sufficient interpretation/translation assistance.

33.  In court, the Applicant said he only knew a little English but he had a friend to prepare Form 86 and the affirmation for him for judicial review. They were quite well-presented. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance. I am sure it was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.

Ground (c): Wrongful exercise of case management power

34.  The Applicant complained that the Adjudicator had no reason to find him incredible.

35.  In paragraphs 23-34 of his decision dated 13 October 2017, the Adjudicator succinctly and rightly pointed out the inconsistent and implausible features of the Applicant’s case. He had sound basis to find the Applicant incredible. His findings were not Wednesbury unreasonable. Ground (c) fails.

Ground (d): Lack of fair hearing

36.  The Applicant criticised the Director for not attending the appeal hearing before the Board on 4 October 2017. I cannot see how the Applicant’s claim was prejudiced by the fact that the Director was excused from the appeal hearing before the Board. Ground (d) also fails.

37.  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. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening inquiry. 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 considered the Applicant’s claim carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which 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

38.  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.

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

Form CALL-1