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HCAL521/2018
[2019] HKCFI 689
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 521 of 2018
BETWEEN
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Mohammad Zafran |
Applicant |
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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 national of Pakistan. He is now aged 31 (DOB: 16 September 1987).
2. The Applicant claimed he would be killed by his stepbrother Khuram Shahzad (“KS”). KS supported the Pakistan Muslim League (Nawaz) (“PMLN”) while the Applicant supported the Pakistan Tehreek-e-Insaf (“PTI”). The Applicant refused to quit PTI to join PMLN.
3. The Applicant said KS joined PMLN in 2008 and held a position in the party. The Applicant himself started to support PTI in 2011. Since July/August 2012, the Applicant had clashes with KS. He got mysterious phone calls threatening him not to assist PTI but to support PMLN. Meanwhile, some unknown people would throw stones at his house at midnight. The Applicant believed KS was behind all the harassment.
4. In January 2013, the Applicant was attacked by some men. Later, he received a phone call. The caller threatened to kill him if he did not leave PTI. The Applicant made a report to the police. The police considered there was no evidence and refused to take his complaint. The Applicant believed the police covered up for KS since PMLN was in power.
5. The Applicant got threatening phone calls frequently. He left home to stay with a relative for two months. He then returned home but continued to get threatening calls.
6. One day, the Applicant bumped into KS. KS threatened him to abandon politics and to leave the village if he wanted to remain alive. The Applicant was in fear. He left home to live in his aunt’s place. However, KS looked for him with the police. The Applicant decided to leave Pakistan. On 6 August 2013, he left the country for China.
7. On 4 February 2014, the Applicant entered Hong Kong from China illegally. He was arrested by the police on 27 February 2014. He sought non-refoulement protection subsequently.
8. The Applicant said his youngest brother became involved in the work of PTI too. He also got threats from KS.
9. KS falsely accused the Applicant’s youngest brother and eldest brother of robbery in 2015. The two brothers were cleared of the accusation later.
10. KS also beat up the Applicant's two brothers and falsely accused them as assailants. The youngest brother was held in custody for several months. Both brothers were cleared of the false accusation in the end.
11. 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 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 29 March 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2013-8-6 |
The Applicant left Pakistan for China. |
| 2014-2-4 |
The Applicant entered Hong Kong illegally from China. |
| 2014-2-27 |
The Applicant was arrested by the police. |
| 2014-3-1 |
The Applicant raised a non-refoulement claim. |
| 2016-7-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-7-4 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-18 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-25 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-2-12 |
The Applicant appeared before the Board for appeal. |
| 2018-3-22 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-29 |
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 case 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 decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 25 July 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.
18. In his further decision dated 25 July 2017, the Director also refused the Applicant’s claim with respect to BOR2 risk.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed him on 12 February 2018.
20. The Adjudicator found a number of inconsistencies in the Applicant’s allegations. She did not accept those inconsistencies were due to the Applicant’s memory loss or medical condition or language problem. The Adjudicator found the Applicant was evasive in his answers; his evidence was vague and unconvincing. There was no supporting evidence. The Adjudicator also noted the Applicant raised before her for the first time that KS harassed him for ‘other reasons in the family’. He said those were disputes relating to property issues. The Adjudicator further noted the Applicant did not seek protection when he stayed in China for several months. She considered the Applicant had delayed in seeking protection. She did not accept the Applicant’s claim. The Adjudicator found the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk.
21. On 22 March 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
22. In his affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 16 above, I shall deal with the current application in relation to the Board's decision only because the Director's decisions had gone on appeal to the Board for rehearing.
23. The Applicant complained he was not given legal representation after the Director’s decision dated 25 July 2016. He lamented he had to face the Adjudicator in the appeal hearing alone and there was no lawyer to stand up for him should there be any unfairness. The Applicant also complained there was a lack of language assistance.
24. The Applicant further complained the Adjudicator allowed the Director to be excused from the appeal hearing.
Court hearing
25. The hearing took place on 3 and 10 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court. [The Applicant claimed he was sick on 3 August 2018 so the hearing was adjourned to 10 August 2018.]
26. On 10 August 2018, the Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents. Yet, he said he did not understand the Board's decision because it was in English and he had no means to hire people to help him.
27. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
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] 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]
30. The Applicant complained he was not given legal representation after the Director’s decision dated 25 July 2016. He complained he had to face the Adjudicator in the Board hearing alone and there was no lawyer to stand up for him should there be any unfairness. However, he failed to point out there was any unfairness in the Board hearing.
31. 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 how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
33. The Applicant further complained the Adjudicator allowed the Director to be excused from the appeal hearing. Yet, he failed to show how the Director's absence in the Board hearing would prejudice his appeal.
34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator 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. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
35. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 19th day of March 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
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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 19/3/2019
Mohammad Zafran
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 19/3/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4345/16/8/64/P1071
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 761/16 & RBCZ 9002634/17 (formerly RBCZ 3001038/14)
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.
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