REHMAN MAQBOOL UR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL722/2017

[2018] HKCFI 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 722 of 2017

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 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 25 (DOB: 20 February 1993).

2.  The Applicant claimed he would be ill-treated or killed by his uncle Mohammad Iqbal (“Mohammad”) because he failed to repay money to his uncle. Mohammad was a member of the Pakistan Muslim League (Nawaz) [“PML(N)”]. He was active in politics and had good connection with the authorities.

3.  In 2013, the Applicant’s father got sick so the Applicant started to borrow money from Mohammad. By 2015, the borrowed sum had reached two million rupees. When the Applicant’s father had recovered, Mohammad asked the Applicant to repay the loans. The Applicant said he was only a student and could not make repayment. He offered to give Mohammad a portion of his father’s land as repayment. However, Mohammed wanted the whole lot. No agreement was reached. Mohammad was enraged.

4.  The next day, someone fired gunshots at the Applicant. The Applicant believed the shooting was instigated by Mohammed. The Applicant reported the matter to the police. However, the police ignored him. Although the police later went to make investigation at the scene, no people told the police what happened.

5.  The Applicant later moved to another place called Peshawar because he feared Mohammed and his associates would hurt him. He still went to school to take examination but he tried to dodge Mohammad.

6.  The Applicant heard from his father that the police had come to pressurise him to give up the shooting complaint. Mohammed had also evicted the Applicant’s family from their home and taken their land.

7.  The Applicant told his family’s experience to a newspaper reporter. The news report came out. Later, the Applicant’s father died. The Applicant believed his father had been tortured by Mohammed though he was not sure of the circumstances.

8.  The Applicant heard that Mohammad had sent some people to Peshawar to look for him. In October 2015, he moved to Lahore but there were also many PML(N) people. He therefore moved further to Karachi. He was still scared. He learnt Mohammed was looking for him and wanted to kill him.

9.  The Applicant finally decided to come to Hong Kong to seek asylum. On 17 April 2016, he left Pakistan for China. He entered Hong Kong illegally on 15 May 2016. Three days later, he surrendered to the Immigration Department and lodged a non-refoulement claim subsequently.

10.  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 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 6 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

12.  Things happened in this order: –

2016-4-17	The Applicant left Pakistan for China.
2016-5-15	The Applicant entered Hong Kong illegally from China.
2016-5-18	The Applicant surrendered to the Immigration Department. He lodged a non-refoulement claim subsequently.
2017-6-20	The Director held a screening interview with the Applicant.
2017-6-26	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”]
2017-9-11	The Applicant appeared before the Board for appeal.
2017-9-15	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2017-10-6	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 complaint on a rehearing basis.

14.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. 

15.  The Applicant did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

16.  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]

17.  In the present case, the Director's decision dated 26 June 2017 was more than three months old by the time the Applicant filed his current application on 6 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 15 September 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 6 October 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

18.  In the Director’s decision dated 26 June 2017, the immigration officer did not make specific finding on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations, the officer found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. He did not accept Mohammad had real intention to harm or kill the Applicant. The alleged risk of harm was assessed to be small. There was also no evidence of state acquiescence or state instigation.

19.  The officer was aware there were reports of the shortcomings of the Pakistan police including corruption. Yet, there were ongoing reforms in the country and 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.

20.  The officer did not accept the Applicant faced any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).

TCAB/NCPO (the Board)

21.  The Adjudicator found the Applicant’s claim was lacking in proof and was illogical in a number of places. He disbelieved the Applicant. He found the Applicant had not made out a case that warranted non-refoulement protection.

22.  Furthermore, the Adjudicator considered reasonable state protection and internal relocation were available to the Applicant.

23.  The Adjudicator was not satisfied the Applicant had any real torture risk, persecution risk, BOR3 risk or BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

24.  In Enclosure 2 of Form 86, the Applicant complained the Director failed to appreciate there was state acquiescence (including its extended concept); failed to appreciate the misconduct of officials; failed to understand the corruption and incompetence of the Pakistan police; wrongly decided on the issue of state protection; being wrong to find there were alternative avenues to seek justice in Pakistan; failed to consider relevant country-of-origin information (“COI”); rendered wrong/ unreasonable decisions; failed to attain high standards of fairness.

25.  The Applicant accused the Adjudicator failed to make sufficient enquiry; failed to advise the Applicant to obtain relevant government records and/or medical reports from Pakistan authorities regarding the seriousness of the torture suffered by him; being biased.

Court hearing

26.  In Form 86, the Applicant requested a hearing.  The hearing took place on 29 May 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.

27.  The Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application. All the grounds of judicial review were in the documents.

28.  The Applicant said he had submitted all to the Director and the Adjudicator but he could not produce his education certificate, character certificate and a Pakistan police report concerning what happened in April 2015. The Applicant said he had those documents in Hong Kong. However, he could not produce them because he was imprisoned from July 2016 to May 2017 and further detained in the Immigration Department detention centre until November 2017.

Discussion

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

30.  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]

31.  The Applicant accused the Adjudicator failed to advise him to obtain relevant government records and/or medical reports from Pakistan authorities regarding the seriousness of the torture suffered by him.

32.  The Adjudicator had to engage in joint endeavour with the Applicant in the screening inquiry. However, he was not the Applicant's counsel. The Applicant knew his case best. He himself could decide whether to obtain relevant government records and/or medical reports from Pakistan authorities to prove his allegation of ill-treatment. He needed no advice from the Adjudicator or the Director on such simple matter.

33.  The Applicant complained he had been detained for some time and could not produce three documents, namely, education certificate, character certificate and a Pakistan police report concerning what happened in April 2015. Be that as it might but there is no evidence the Applicant's non-refoulement claim failed for the want of those three documents.

34.  The Applicant had laid a barrage of complaints. I have studied the Adjudicator’s decision and the Director's decision under ‘rigorous examination and anxious scrutiny’. In my judgement, the Director and the Adjudicator had proper basis for their 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 any of the Applicant’s complaints against the Director or the Adjudicator, who had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case 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 achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

35.  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