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HCAL240/2018
[2018] HKCFI 1327
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 of 2018
BETWEEN
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ABDUL AZIZ |
Applicant |
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and |
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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 46 (DOB: 1 February 1972).
2. The Applicant claimed that he would be harmed or killed by Muhammad Nasir (“Nasir”), who had a land dispute with the Applicant’s employer Muhammad Afzal (“Afzal”). The Applicant acted for Afzal in the court proceedings. The Applicant also said he had been framed up in a false rape case. He jumped court bail and feared the Pakistan police would arrest him.
3. The Applicant had been Afzal’s driver since 1997. In 2002, Afzal bought a piece of land which Nasir had always wanted. Nasir asked Afzal to sell him the land at half price. Afzal would not and fenced off his land. Nasir was enraged.
4. In May 2002, Nasir and his associates fired gunshots at Afzal. Afzal and the Applicant fired back in self-defence. Nobody was hurt. All were arrested by the police. They were charged with illegal shooting and were brought before the court. Afzal and the Applicant were acquitted while the opposite party were all convicted. However, the latter were just fined.
5. Nasir filed a lawsuit in court requesting Afzal to sell him the land. Afzal lived in UK most of the time so he signed a power of attorney to enable the Applicant to act on his behalf. Nasir threatened the Applicant not to attend court hearing or he would be killed. The Applicant refused.
6. Some months later, Afzal came back to Pakistan. Nasir and his men came to threaten the Applicant not to attend court again. They assaulted the Applicant. The matter was reported to the police
7. In early 2003, Nasir made a false report to the police alleging the Applicant possessed illegal firearms. The police later found a gun in Afzal’s car. The gun belonged to Afzal. However, the police ignored the Applicant’s explanation and detained him. The Applicant was beaten cruelly in the police station. He learned that Nasir had bribed the police to torture him. He was only released after Afzal had also offered money to the police.
8. The Applicant continued to represent Afzal in the land dispute proceedings.
9. In 2004, the police arrested the Applicant for allegedly raping a female relative of Nasir’s. The Applicant believed Nasir had framed him up and influenced the police. He managed to get bail from the court later.
10. In 2005, Nasir fired gunshots at the walls of his own house. He made a false report that the Applicant did it. The police then looked for the Applicant. The Applicant went into hiding for 2 to 3 months.
11. One day in early 2006, the Applicant went home to visit his maternal grandmother. Nasir and his associates came and fired shots. The Applicant’s cousin was killed. The cousin’s father reported the matter to the police. The Applicant was so scared that he fled.
12. The police could not arrest Nasir but managed to get hold of one of his men Saleem. However, the police released Saleem after receiving bribes. The Applicant said Nasir had connection with the authorities as he was a councillor.
13. Afzal advised the Applicant to leave Pakistan. The Applicant then left Pakistan sometime in 2006. He first went to China and later came to Hong Kong. He applied for refugee status with UNHCR in August/September 2006. However, he failed to attend the interview.
14. In April 2010, the Applicant heard from Afzal that he had been shot by Nasir’s people. He also learnt that Saleem had threatened to kill him and his wife.
15. The Applicant last contacted his wife in June 2010. He later learnt from his relatives that his wife was killed in the traffic accident in 2011. He also learnt that the Pakistan police had been looking for him; Afzal has gone back to UK; the land dispute was hanging on; Nasir was still a councillor.
16. The Applicant raised a torture claim here in August 2007. His claim of torture risk[1] was refused by the Director in May 2012. His appeal on torture claim was also refused by the Board in mid-2012.
17. In March 2013, the Applicant lodged a non-refoulement claim. 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 with respect to the three remaining 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 14 February 2018, the Applicant applied for leave for judicial review.
Chronology of events
19. Things happened in this order: –
| July 2006 |
The Applicant entered Hong Kong illegally from China. |
| 2006-12-20 |
The Applicant was arrested by customs and Excise officers for dutiable goods offence. |
| 2007-3-26 |
The Applicant was again arrested by customs and Excise officers for dutiable goods offence. |
| 2007-8-22 |
The Applicant raised a torture claim |
| 2012-5-22 |
The Director refused the Applicant’s torture claim. |
| 2012-6-5 |
The Applicant appealed to the Board. |
| 2012-7-4 |
The Board refused the Applicant’s appeal on torture claim. |
| 2013-3-21 |
The Applicant lodged a non-refoulement claim. |
| 2016-3-30 |
The Director held a screening interview with the Applicant. |
| 2016-6-29 |
The Director refused the Applicant’s claim with respect to these two applicable grounds: persecution risk and CIDTP risk (BOR3 risk). |
| 2017-6-12 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-26 |
The Applicant failed to submit additional facts by deadline and thereafter. |
| 2017-7-4 |
The Director refused the applicant’s claim with respect to the last applicable ground life risk (BOR2 risk). |
| 2017-11-16 |
The Applicant appeared before the Board for appeal. |
| 2018-2-1 |
The Adjudicator refused Applicant’s claim with respect to these three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR2 risk). |
| 2018-2-14 |
The Applicant applied for leave for judicial review. |
Respondents
20. 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.
21. 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;
22. 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]
23. In the present case, the Director's decision dated 29 June 2016 and further decision dated 4 July 2017 were more than three months old by the time the Applicant filed his current application on 14 February 2018. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 1 February 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 14 February 2018; the application against the Board's decision was made in time.
Director of Immigration (the Director)
24. In the Director’s decision dated 29 June 2016, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant's allegations, he found the level of risk against the Applicant was low. The alleged dispute started 10 odd years ago. There was no evidence to show the Applicant’s alleged enemies and the Pakistan police were still after the Applicant. Any risk, if it ever existed, would have dissipated.
25. The officer was aware there were reports of corruption in the Pakistan government and police. However, there was also objective country-of-origin information (“COI”) to show that the Pakistan government had taken practical steps to monitor the police and to improve their effectiveness. The officer was satisfied reasonable state protection and internal relocation were available to the Applicant.
26. The officer did not accept the Applicant would face persecution risk or BOR3 risk. He refused the Applicant’s claim with respect to those two applicable grounds.
27. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the last applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
28. In the Director’s further decision dated 4 July 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the last applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
29. In the appeal hearing before the Adjudicator, the Applicant claimed he had back pain and migraines. He said he had taken medication but he did not indicate he was unable to participate in the hearing. He told the Adjudicator that he had nothing to say. He expressed that everything was already in the bundle and he was not prepared to answer the Adjudicator’s questions. When the Adjudicator asked the Applicant questions, the Applicant claimed his mind was not working properly. He also said that he did not know he would be asked of questions in the hearing. Nevertheless, the Adjudicator felt obliged to clarify the Applicant’s claim. When he asked questions, the Applicant did respond.
30. The Adjudicator was prepared to accept the Applicant was Afzal’s driver and there was a land dispute. He was even prepared to accept the Applicant’s cousin had been shot dead. However, he found inconsistent features in the Applicant's claim which the Applicant failed to offer credible explanation. The Adjudicator did not accept the Applicant played a significant role in the land dispute or that he was targeted by the alleged enemies. He found the cousin’s death had nothing to do with the land dispute. The Adjudicator also did not accept the Applicant had been framed up of false accusations or that the Pakistan police targeted him.
31. The Adjudicator found reasonable internal relocation was available to the Applicant.
32. The Adjudicator considered since there was no real risk facing the Applicant, it would not be necessary for him to consider the issue of state protection. Nevertheless, he found that police protection would not be withheld from the Applicant should the latter require it in Pakistan.[6]
33. The Adjudicator found the Applicant faced no real persecution risk, BOR3 risk or BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
Grounds for judicial review
34. In his affirmation, the Applicant had these complaints: –
(a) Lack of legal representation for the appeal.
(b) Lack of language assistance.
(c) The Director failed to give reasons for his decision on BOR2 risk; failed to explain how he balanced his consideration of country-of-origin information (“COI”); being absent from the appeal. The Applicant also alleged he had not received the Director’s letter inviting him to provide additional facts relating to BOR2 risk.
(d) The Adjudicator was prejudiced; being wrong to disbelieve him; ignored his medical situation; failed to give proper explanation for refusing his appeal.
Court hearing
35. In Form 86, the Applicant requested a hearing. The hearing took place on 4 June 2018. The Applicant was in person. He elected to speak Punjabi. There was a Punjabi interpreter to render interpretation service for him.
36. The Applicant said he was assisted by the Duty Lawyer Service up to the Director’s decision dated 29 June 2016. In the current application for leave for judicial review, a friend helped him to prepare Form 86 and the affirmation. The Applicant said the Director and the Adjudicator did not listen to him but he did not elaborate his grounds of complaint.
37. The Applicant confirmed he had submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. 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’.[7]
Lack of legal representation
40. The Applicant complained that he had not been provided with legal assistance for the appeal. In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Service up to the Director's decision dated 29 June 2016. There was no more legal assistance available to him thereafter.
41. 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 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.
Lack of language assistance
42. The Applicant complained that he had not been given sufficient interpretation/translation assistance.
43. 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 has much exaggerated his problem of getting interpretation/translation assistance and handling English documents.
Complaints against the Director
44. The Applicant alleged he had not received the Director’s letter inviting him to submit additional facts for the consideration of BOR2 risk.
45. According to the address supplied by the Applicant to the court, he had been living at the same address since 2016. There was no reason why the Applicant had not been able to receive the said Director’s letter dated 12 June 2017 when there was no complaint of any other missed post. Nevertheless, the Applicant confirmed he had already submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim. Therefore, the Applicant was not deprived of any chance to present his case fully to the Director and the Adjudicator, whether he had received the said letter or not.
46. The Applicant complained that the Director did not give reasons for his decision on BOR2 risk.
47. The Director’s further decision dated 4 July 2017 relating to BOR2 risk was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 29 June 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 4 July 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 right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 29 June 2016.
48. The immigration officer acting on behalf of the Director stated clearly what COI he had referred to. It is clear from his report dated 29 June 2016 that he had a balanced consideration of the relevant COI. His finding, conclusion and decision in this regard are all reasoanble. It is unreasonable to require the officer to describe his mental process in the balancing exercise. It is not necessary.
49. The Applicant also criticised the Director for not attending the appeal hearing before the Adjudicator on 16 November 2017. The Applicant cannot show how the Director’s absence would prejudice his appeal. There is no substance in this complaint.
50. I have reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director, 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 Director was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Complaints against the Adjudicator
51. The Applicant complained the Adjudicator ignored his medical condition. That is not true. The Adjudicator was alive to his claimed health condition on the day of the appeal hearing. He was prudent enough to ask the Applicant if he felt able to participate in the hearing. The Applicant did not indicate that he was unable to.[9]
52. The Adjudicator gave clear reasons for his decision against the Applicant with respect to persecution risk, BOR3 risk and BOR2 risk. There is no evidence to show the Adjudicator was prejudiced. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He 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. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
53. 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.
Dated 22nd day of June 2018
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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
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 22/6/2018
ABDUL AZIZ
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 22/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4105/16/7/75/P1039
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2079/15 & RBCZ 9002179/17 (formerly RBCZ 2000208/14)
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] Order 53, rule 4 of the Rules of the High Court.
[6] The Adjudicator’s Report, para 81.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[9] The Adjudicator’s Report, para 47.
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