MUHAMMAD NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL1384/2018

[2019] HKCFI 2164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1384 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

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

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 53 (DOB: 20 October 1965). 

2.  The Applicant first came to Hong Kong on 10 June 2002 as visitor. His visa expired on 25 June 2002. He left Hong Kong for China and came back as visitor on 27 June 2002. He was allowed to stay until 4 July 2002. He did not leave accordingly but overstayed from 5 July 2002. The Applicant was arrested two odd years later on 21 February 2005. He was repatriated to Pakistan on 18 May 2005.

3.  The Applicant left Pakistan again in December 2005. In February 2006, he sneaked into Hong Kong. He was arrested by the police on 20 March 2008. He raised a torture claim[1] by a letter dated 26 May 2008.

4.  The Applicant claimed he would be harmed or killed by six men who blackmailed him in Pakistan. He said the six persons harassed him on two occasions.

5.  The first one was in August 2005, about three months after he had been repatriated from Hong Kong to Pakistan in May 2005. Six unknown men asked him if he had just returned from abroad. They said the Applicant must have earned a lot of money. They demanded him to pay them 400,000 rupees. The Applicant said he had no money. The men threatened to kill him if he refused to pay. They warned him they would come again.

6.  The Applicant treated that blackmail as a chance encounter. He did not make any report to the police.

7.  Two weeks later, the Applicant came across the six men. They asked if he had got the money for them. The Applicant refused to pay. He was attacked by the group. The men threatened to kill the Applicant. Two of them attempted to stab him but the Applicant warded off their knives. He was injured though. The six men finally let the Applicant go, saying he must pay them or he would be killed.

8.  The Applicant went to the Civil Hospital in Sargodha for treatment. He refused to be hospitalised because he wanted to go home to see his children. On the following day, he reported the matter to the police. The police officer did not make any record of his complaint. The Applicant was told the culprits could not be located because he did not know their identities. The police officer told the Applicant that his problem could be solved if he paid those men. The Applicant thought the six men must have connection with the police and they had influenced the police. He also believed the police would only take his case if he bribed them.

9.  The Applicant was in fear. He left home for another city called Gujranwala. He stayed in a hospital for a week and then lived with his uncle there. When his uncle said the six men might come to find him, the Applicant moved to live with his cousins. He then moved further to Rawalpindi and finally left Pakistan for China in December 2005.

10.  In October 2006, the Applicant learnt the six men had beaten up his eldest son in Pakistan. They asked his son to tell the Applicant to give them money. The Applicant said his wife later died of heart attack due to fear.

11.  The Applicant said state protection and internal relocation were unavailable to him.

12.  The Applicant claimed he had lost contact with his family or relative since 2009. He did not know the current situation in Pakistan. He believed the six men would not spare him. He feared if he returned to Pakistan, the police would leak to the men his whereabouts and the six men would find him and kill him.

13.  On 2 March 2011, the Director of Immigration (“the Director”) rejected the Applicant's torture claim. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

14.  The Adjudicator dealt with the Applicant’s appeal on torture risk without holding any hearing. On 11 April 2011, he rejected the Applicant's appeal.

15.  The Applicant applied for leave for judicial review on 4 December 2012. The case number was HCAL 164/2012. High Court Judge Thomas AU (as he then was) heard the application on 15 March 2013.

16.  On 23 January 2014, the Judge granted the Applicant leave to apply for judicial review of the Adjudicator’s decision dated 11 April 2011. Parties later agreed by consent for the Applicant's torture claim to be remitted to the Board for determination. The Judge made the order on 31 March 2014.

17.  By then, the Unified Screening Mechanism had come into place. The Applicant lodged a non-refoulement claim on 24 November 2014. The Director then considered the Applicant’s claim with respect to the other three applicable grounds: risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].

18.  On 31 July 2017, the Director rejected the Applicant's non-refoulement claim with respect to those three applicable grounds.

19.  The matter was later taken to the Board again on appeal. In May 2018, another adjudicator other than the one dealing with the Applicant’s torture claim in 2011 heard the Applicant’s appeal with respect to all the four applicable grounds. The second adjudicator rejected the Applicant’s appeal with respect to all the four applicable grounds on 19 June 2018.

20.  The Applicant applied for leave for judicial review on 13 July 2018. This time, the case number is HCAL 1384/2018. The Applicant named the Board as respondent. The Board is the putative respondent and the Director is the putative interested party.

The Director's decision 

21.  In his decision dated 11 March 2011, the Director did not accept the Applicant faced any torture risk.

22.  In his decision dated 31 July 2017, the Director did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk.

The Board's decision 

23.  The second adjudicator interviewed the Applicant on 2 May 2018 and 8 May 2018. The Applicant was represented by a duty lawyer.

24.  The Adjudicator noted there was no evidence the six men pursued the Applicant after the two alleged encounters, which seemed to be by chance only. The Adjudicator found it unconvincing that the Applicant’s eldest son was beaten up by the six men and the Applicant's wife later died of heart attack because of fear. Yet, no report was made to the police for that.

25.  The Adjudicator found the medical evidence submitted by the Applicant perplexing. Nevertheless, he was prepared to accept the Applicant was hospitalised for the seven days as stated in the medical certificate issued by Akram Medical Complex in Gujranwala. However, that did not prove the Applicant was injured by the six men or that he had to flee for safety. The Adjudicator found the Applicant had no reason to run for his life.

26.  The Adjudicator noted there were corruption and inefficiency in Pakistan. The alleged failure of the police to take the Applicant’s complaint was related to one officer only. The Adjudicator was satisfied reasonable state protection was still available to the Applicant. Internal relocation was also viable in his case.

27.  The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. On 19 June 2018, he rejected the Applicant’s appeal with respect to all the four applicable grounds.

Grounds of judicial review

28.  In his affirmation dated 13 July 2018, the Applicant stated no grounds of complaint. He wrote ‘I am writing this letter because I not really understand and satisfied about my case/status decision’.

Court hearing

29.  The hearing took place on 26 September 2018. The Applicant was in person. An Urdu interpreter provided assistance in court.

30.  As the Applicant had not provided any ground of application in his affirmation, he was asked to state his grounds in court. He was given time to organize himself and to instruct the interpreter to write on his behalf. The matter was stood down. When the hearing resumed, the Applicant had only asked the interpreter to write down for him ‘I am not a lawyer and I do not have any assistance of a lawyer therefore I cannot find any detailed point. But I know that according to one rule of USMS if there is any human rights violation the case should be reviewed again’. The writing continued to say ‘the adjudicator did not understand my story or did not pay much attention to my case’.

31.  The Applicant said in court that he had no legal representation after 2011/2012. He said he had a heart problem and did not feel well on the second hearing day before the Adjudicator, i.e. 8 May 2018.

32.  The Applicant felt the Adjudicator made his decision quickly and not according to the rules of the Unified Screening Mechanism.

33.  The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration.

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’.[5] 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.” [6]

36.  The Applicant said he had no legal representation after 2011/2012. That was not true. He was represented by the Duty Lawyer Service before the Director in 2017 and also represented by a duty lawyer in both hearings before the Adjudicator in May 2018.

37.  The Applicant said he had a heart problem and did not feel well on the second hearing day before the Adjudicator, i.e. 8 May 2018. There was no evidence of that. The duty lawyer was there. He would certainly safeguard the Applicant’s interests. There was no evidence he overlooked the Applicant’s condition or failed his lawyer’s duty.

38.  The Applicant complained the Adjudicator did not understand his story and did not pay much attention to his case. That was untrue. The Adjudicator had held two hearings with the Applicant and his counsel. There was detailed inquiry of the Applicant’s claim. There was no evidence the Adjudicator hurried anyone in the hearings or that he considered the Applicant’s case thereafter hastily.

39.  The Applicant said if there was any human rights violation, his case should be reviewed again. He, however, failed to prove there was any human rights violation in his case.

40.  The Adjudicator had analysed the Applicant’s claim in depth. He found the Applicant was merely blackmailed by the six men in chance encounters. The men had not pursued him after the second encounter. The Applicant ran for his life for no good reason. The Adjudicator did not find there was any non-refoulement risk facing the Applicant. The Adjudicator had referred to country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event. He rejected the Applicant’s claim for non-refoulement protection with respect to all the four applicable grounds.

41.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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 and his counsel 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. 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 claim.

Conclusion

42.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I refuse to grant him leave to apply for judicial 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

[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] CACV 219/2018 [2018] HKCA 570, para 14(1).