ASGHAR FAHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL729/2017

[2018] HKCFI 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 729 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant

Background

1.  The Applicant is a Pakistan national. He is now aged 31 (DOB: 16 November 1986).

2.  The Applicant alleged that since 2015 his uncle Amir and the uncle’s son Sadam started to ask him to transfer part of the land he had inherited from his grandfather. The Applicant refused but Amir and Sadam continued to threaten the Applicant and the Applicant's family to make the transfer. They threatened to kill the Applicant and his family if the Applicant would not accede to their request. The Applicant said Amir and Sadam were influential people and had connection with the police and the government. They belonged to the ruling party Pakistan Muslim League Nawaz (“PLMN”).  The Applicant had reported the matter to the police. However, the police would not take action. The Applicant alleged the police in Pakistan would only acted for the interests of the ruling party or upon bribery. The Applicant said he could not relocate himself to other areas in Pakistan because Amir and Sadam had connection with the ruling party. They could find him.

3.  The Applicant finally decided to leave the Pakistan for his own safety. He arrived in China first and then entered Hong Kong illegally by boat on 8 January 2016. He was arrested by the police and subsequently lodged a non-refoulement claim.

4.  The Applicant claimed that Amir and Sadam continued to threaten his family in order to force the Applicant's father to transfer the land to them. They threatened to kill all of the Applicant's family.

5.  In the ensuing two‑tier screening process (“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 on all 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].

6.  On 6 October 2017, the Applicant applied for judicial review.

Chronology of events

7.  Things happened in this order: –

2016-1-8	The Applicant entered Hong Kong illegally and was arrested.
2016-1-11	The Applicant filed a non-refoulement claim.
2016-5-6	The Director refused the Applicant’s claim on three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3 risk). [“the Director’s decision”]
2016-5-16	The Applicant appealed to the Board.
2017-6-9	The Director invited the Applicant to submit additional facts for the consideration of a fourth applicable ground: life risk (or BOR2 risk).
2017-6- 23	The Applicant failed to submit additional facts by deadline or thereafter.
2017-7-3	The Director refused the Applicant’s claim on the fourth applicable ground: life risk (or BOR2 risk). [“the Director’s further decision”]
2017-9-1	The Applicant appeared before the Board for appeal hearing.
2017-9-22	The Adjudicator dismissed the Applicant’s appeal on all the four applicable grounds. [“the Board’s decision”]
2017-10-6	The Applicant applied for judicial review

Respondent/Interested party

8.  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.

9.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as proposed respondent. He sought relief in respect of the Board’s decision dated 22 September 2017.

10.  In support of his application, the Applicant submitted a one-page affirmation dated 6 October 2017 [Folio 2]. He claimed he had life threats in his home country and did not feel safe there. He was not satisfied with the Board’s decision.

11.  Apparently, the Applicant only wished to sue the Board. In any event, the two Director’s decisions were already more than three months old when the Applicant filed his application for judicial review on 6 October 2017.  He cannot seek judicial review against those two decisions out of time in the absence of any good reason.[5]

12.  In the circumstance, the sole respondent of the current application for judicial review is the Board; the Director is no doubt an interested party.

No request of hearing

13.  Order 53, rule 3 of the Rules of the High Court provides:

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.

14.  In Form 86, the Applicant has not requested a hearing.  Nor has he stated such a wish in his affirmation/statement.  There is nothing unambiguous in the application that calls for a hearing.  As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only.

Director of Immigration (the Director)

15.  A screening interview was scheduled for 2016-3-8. The Applicant showed up but claimed he was not fit to participate in the interview. He said he would seek medical treatment later that day. No interview was conducted then.

16.  On 14 March 2016, the Applicant produced a 2-day sick leave certificate covering 8-9 March 2016.

17.  On 18 March 2016, the immigration officer sent a list of 50 questions to the Duty Lawyer Scheme acting for the Applicant to request for more information over the Applicant’s claim. The Applicant completed the list and returned it on 31 March 2016. The officer considered that no further information was required. She proceeded to determine the Applicant’s claim on the available information.

18.  The officer found the Applicant’s version unconvincing. And putting aside the credibility issue, the officer considered that the alleged feud between the Applicant and his relatives was merely a private land dispute.

19.  The officer did not accept the Applicant had suffered harm to a minimum level of severity or that he faced a genuine and substantial risk of being subjected to ill-treatment under BOR3. She did not consider the Applicant’s fear of being persecuted by his enemies to be well-founded; the risk was assessed to be small. Also, the officer did not find there were substantial grounds for believing the Applicant would be subjected to torture upon his return to Pakistan. She noted no severe pain or suffering had ever been inflicted upon the Applicant that fitted well with the definition of “torture”. The officer was satisfied there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.

20.  On 6 May 2016, the officer rejected the Applicant’s non-refoulement claim on these three applicable grounds: (i) risk of torture, (ii) risk of persecution, (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk).

21.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of a fourth applicable ground, i.e., risk of violation of the right to life (or BOR2 risk). However, the Applicant did not respond by the deadline of 28 June 2017 or thereafter.

22.  In the Director’s further decision, the immigration officer considered the Applicant failed to establish a personal and real risk of violation of the right to life.

23.  On 7 July 2017, the officer refused the Applicant’s non-refoulement claim on the fourth applicable ground: risk of life (or BOR2 risk).

TCAB/NCPO (the Board)

24.  The Applicant appeared in person before the Board on 1 September 2017. He answered questions asked by the Adjudicator.

25.  Having heard the Applicant and viewed all the documents available, the Adjudicator did not find the Applicant’s version credible. She did not accept there was any intended harm to the Applicant or his family. She did not accept there were substantial grounds for believing that the Applicant would be subjected to torture. There was no genuine and substantial CIDTP risk; there was no evidence to show the Applicant would face life risk; and the Applicant also failed to prove he had a well-founded fear of persecution risk. The Adjudicator found that reasonable state protection and internal relocation alternatives were available to the Applicant in Pakistan.

26.  On 22 September 2017, the Adjudicator rejected the Applicant’s non-refoulement claim on all the four applicable grounds.

Grounds for judicial review

27.  In his affirmation dated 6 October 2017 (Folio 2), the Applicant simply said he was not satisfied with the Board’s decision. He said he did not feel safe in Pakistan. There were life threats there and he would like to stay in Hong Kong for safety.

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]

30.  The Applicant’s case was a simple one. The Adjudicator was acquainted with the facts of the Applicant’s case and the law. She had proper basis for her findings and conclusions, which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness.

31.  The Director is only an interested party in the current application for judicial review. However, for the sake of complete discussion, I would say that even if the Applicant could seek judicial review against the Director (putting aside the 3-month limitation issue), the Applicant would have no arguable grounds to complain.

32.  Though the Applicant was unable to participate in the screening interview on 8 March 2016 due to falling sick, the immigration officer subsequently sent a comprehensive list of questions to the Duty Lawyer Scheme acting for the Applicant. The Applicant did reply and the officer was satisfied that she had all the information required for proper screening. She did not consider that a substituted interview was necessary. There is no evidence to show the Applicant or the Duty Lawyer Scheme had complained about that. The Applicant did not raise this either in the current judicial review application. Nor did he demonstrate he would have further information to contribute which could only be achieved in a screening interview. In the circumstance, the officer was proper in her discharge of inquiry duties. The Director’s decisions were not Wednesbury unreasonable. There were no errors of law and no procedural unfairness.

Conclusion

33.  In my judgement, the Adjudicator and the Director had proper basis for their respective findings and conclusions, 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 complaint against the Board or the Director, who had each engaged in proper 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 reports of the Director and the Board respectively showed they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/ conclusions/ decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

34.  The Applicant's complaint is not reasonably arguable either against the Director or the Board. He has no reasonable 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

[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] Order 53 rule 4(1) of the Rules of the High Court and s. 21K(6) of the High Court Ordinance, Cap 4.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.