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HCAL1038/2018
[2019] HKCFI 1978
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1038 of 2018
BETWEEN
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Gulraiz |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Respondent |
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Director of Immigration |
2nd 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 of the decision of the Torture Claims Appeal Board be allowed.
Observations for the Applicant
Background
1. The Applicant is a national of Pakistan. He is now aged 33 (DOB: 14 January 1986).
2. The Applicant claimed he would be harmed or killed by his uncle due to a land dispute. The Applicant said he supported the Pakistan Muslim League-N (“PML-N”) while his uncle belonged to Pakistan Tehreek-e-Insaf (“PTI”). His uncle was an influential man and a government official.
3. The Applicant said his family had inherited a piece of land from the ancestors. It was registered in his father’s name. His uncle wanted the land and filed a false claim to the court in 2014 to claim ownership of the land. The Applicant opposed to his uncle’s claim.
4. The Applicant alleged his uncle then put him under watch and threatened to assault him. He made a complaint to the police but the police did not do anything.
5. The Applicant intended to leave Pakistan to seek protection overseas. He got a visa for China in late July 2015 but he did not leave immediately.
6. One day, when the Applicant was farming on his land his uncle came with some men. There was an argument. The Applicant was assaulted and injured. His uncle threatened to kill him.
7. The Applicant left home and went to Lahore to stay with a friend. He said Lahore was also a dangerous place because PTI people targeted the PML-N supporters. There was a bomb blast in mid-August 2015. It was planted by PTI and killed a lot of PML-N supporters.
8. The Applicant feared for his life. He finally left Pakistan on 19 August 2015. He arrived in China on the next day. The Applicant sneaked into Hong Kong on 21 August 2015 and was arrested by the police. He raised a non-refoulement claim on 23 August 2015.
9. The Applicant last contacted his family around May 2017. He learnt his uncle was still looking for him.
10. The Applicant said his uncle called him once in October/November 2017, saying he was waiting for the Applicant.
11. The Applicant did not think state protection and internal relocation were available to him.
12. In the ensuing two-tier screening process 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 rejected the Applicant’s claim with respect to all the four applicable grounds: risk of torture[1], risk of persecution[2], risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
13. On 7 June 2018, the Applicant applied for leave for judicial review.
Respondents
14. 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.
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent;
16. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. I shall deal with his current application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 21 November 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s claim with respect to all the four applicable grounds.
The Board's decision
18. The Applicant appealed to the Board. He attended the Board hearing on 11 April 2018. He claimed he had jaw pain and said it was so painful that he could not talk properly. The Adjudicator noticed the Applicant was able to talk without difficulty. Nevertheless, he adjourned the hearing shortly after commencement upon the Applicant's request. He told the Applicant that the Board expected him to provide medicate proof of his condition before or during the next hearing, which was scheduled for 18 April 2018. The Applicant was informed of that hearing date.
19. The Applicant did not appear at the adjourned hearing on 18 April 2018. The TCAB Secretariat tried to contact him but was unsuccessful.
20. The TCAB Secretariat sent a letter dated 18 April 2018 to the Applicant. It asked the Applicant to justify his absence on 18 April 2018 and his request for adjournment on 11 April 2018. The Applicant was told to submit such explanation within 7 days. He was warned that if he did not do so, the Adjudicator would proceed to determine his appeal without further notice.
21. The Board received a letter dated 23 April 2018 from the Applicant. The Applicant said he had problem in walking and the doctor advised him to rest for four weeks. He had attached medical documents to prove he was admitted to hospital on 14 April 2018 for ankle fracture. The medical prescription given to the Applicant was for four weeks starting from 20 April 2018. The Adjudicator assumed the Applicant was discharged from the hospital on 20 April 2018.
22. The Applicant, however, did not produce any medical proof to the Board in relation to his claimed discomfort on 11 April 2018. The Adjudicator considered the Applicant failed to prove he had any justification to request for adjournment that day. He did not find it necessary to grant the Applicant another hearing and proceeded to consider the appeal on the available evidence.
23. The Adjudicator found there were inconsistent and implausible features in the Applicant's allegations. The Applicant told the Director in 2015 that his uncle was called Arshad Khan. However, in his Non-refoulement Claim Form dated 18 October 2017, he named his uncle as Haris Khan. The Adjudicator also found it odd that the Applicant was the only one from his family to litigate with his uncle over the land, which was said to be registered in the name of the Applicant’s father. The Adjudicator noted the Applicant did not leave Pakistan as soon as he had got his visa for China. He also noted the Applicant added new allegations at a later stage of the screening process that he owed his uncle 22.5 million rupees and his uncle followed him to Lahore. The Adjudicator doubted the Applicant’s claim that his uncle called him once in October/November 2017. He found there was no supporting evidence of the Applicant’s claim. He concluded the Applicant was incredible.
24. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 18 May 2018, he rejected the Applicant’s non‑refoulement claim with respect to all the four applicable grounds.
Grounds for judicial review
25. In his affirmation, the Applicant complained he did not have legal advice and language assistance for appeal to the Board. He said the appeal bundle was served on him shortly before the Board hearing. The documents were not translated or read to him for his full understanding. He said he did not understand the Board’s decision dated 18 May 2018. He complained his case had not been determined fairly.
Court hearing
26. The hearing took place on 14 and 24 September 2018. The Applicant was in person. An Urdu interpreter provided service in court.
27. On 14 September 2018, the Applicant confirmed all the grounds of his application were in the documents. He said the Board hearing on 11 April 2018 was adjourned after a few preliminary questions since his face was swollen. Two to three days before the next hearing on 18 April 2018, he hurt his leg. He was then hospitalized. A friend helped him to write to the Board before the hearing to inform the Board of his situation. Someone from the Board called him on 18 April 2018 and asked him to come back on the next Wednesday. The Applicant was still in hospital so he asked his friend to bring a medical certificate to the Board around 22 April 2018. The Applicant said he was discharged from the hospital after having been hospitalized for 8-9 days. He went home but could not walk for a month. Then he received the Board's decision rejecting his appeal.
28. On 24 September 2018, the Applicant provided some medical records to the court. Among them was a medical record of his seeing the doctor on 12 April 2018 at Queen Elizabeth Hospital for some swelling on his right face. The Applicant said he had not given that document to the Board.
29. The Applicant complained the Adjudicator did not give him further hearing after 18 April 2018. I asked him what he would submit to the Adjudicator if there was a substitute hearing for his absence on 18 April 2018. The Applicant said he would answer the Adjudicator’ questions.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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] 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.” [7]
32. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 21 November 2017. He complained there was a lack of or insufficient legal representation.
33. 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 failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
34. The Applicant complained he received the appeal bundle only shortly before the Board hearing.
35. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.
36. The Applicant complained there was a lack of language assistance.
37. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]
38. In the current application, the Applicant had Form 86 and the affirmation prepared in English. Apparently, he could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was also assisted by interpreters while he was still represented by the Duty Lawyer Service and during the screening process. The Applicant had much exaggerated his language problem.
39. The Applicant lastly complained the Adjudicator did not give him further hearing after he was absent for cause from the hearing scheduled for 18 April 2018.
40. The appeal before the Adjudicator was first heard on 11 April 2018. It was adjourned shortly after commencement when the Applicant claimed he was unwell. The hearing was adjourned to 18 April 2018. On that day, the Applicant was absent. He later provided medical proof to the Board to justify his absence on 18 April 2018. However, he did not provide proof to justify his asking for adjournment on 11 April 2018.
41. While the Adjudicator accepted the Applicant was absent for cause on 18 April 2018, he considered the Applicant failed to prove he was justified to ask for adjournment on 11 April 2018. The Adjudicator did not deem it necessary to hold further hearing and proceeded to consider the appeal on the available evidence. He found there were inconsistent and implausible features in the Applicant's allegations. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 18 May 2018, he rejected the Applicant’s claim with respect to all the four applicable grounds.
42. The Adjudicator was doubtful of the Applicant's claim of discomfort on 11 April 2018. Nevertheless, he granted him adjournment that day. The case was adjourned to 18 April 2018, the Applicant was absent since he had hurt his leg and was hospitalized. The Board came to know that after it had received a letter dated 23 April 2018 with medical documents attached. The Applicant satisfied the Board that he had cause for his absence. In that case, the Adjudicator should arrange for a new hearing to replace the one that would have taken place on 18 April 2018 if not for the Applicant's hospitalisation. He did not since the Applicant had not produced any proof to justify his asking for adjournment on 11 April 2018.
43. In court, the Applicant was able to provide a medical document showing he saw the doctor on 12 April 2018 for swelling on his right face. It was not clear why he did not give such proof to the Board in due course.
44. Nevertheless, when the Board was satisfied that the Applicant was absent for cause from the hearing on 18 April 2018, a substitute hearing should be arranged for the Applicant to explain his non-refoulement claim before the Adjudicator. The Adjudicator considered there were inconsistent and implausible features in the Applicant's allegations. He should put his doubts to the Applicant for him to explain or clarify before deciding whether the Applicant was credible or not. The Adjudicator did not. That would prejudice the Applicant by depriving him of an opportunity to explain those inconsistent and implausible features, which the Adjudicator was seriously concerned with. That could be regarded as substantial procedural unfairness.
Conclusion
45. The Applicant's complaint that he had been deprived of an opportunity to be heard by the Adjudicator is reasonably arguable. On that basis alone, I grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 18 May 2018.
Dated the 9th day of August 2019
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(Henry Ng)
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 the Applicant’s 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 9/8/2019
Gulraiz
Applicant’s ref. no:
Nil.
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Sent to the Respondent /the Respondent’s solicitors / such Interested Parties as may be directed by the Court / the Interested Parties’ solicitors on 9/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Respondent’s ref. no.:
USM 9362/17/12/29/P1836
Director of Immigration
2nd Respondent’s ref. no.:
QA T/C 2554/17 (formerly RBCZ 12966/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[11] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
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