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HCAL821/2018
[2019] HKCFI 2059
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 821 of 2018
BETWEEN
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Allah Rakha |
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 40 (DOB: 27 November 1978).
2. The Applicant claimed he would be killed by a powerful mafia group because he was a witness in a drug case.
3. The Applicant claimed he had worked in different logistic companies in Pakistan. In 2010, he became a franchise owner in the business.
4. In late 2012 or early 2013, an unknown person went to his office to request shipping service. The Applicant found the customer’s appearance did not match his identity card. The customer said the identity card was actually his elder brother’s. The Applicant was persuaded by his neighbour Mushtaq to accept the consignment. He finally agreed to take the customer’s package for shipping to the United Kingdom.
5. A few days later, the Applicant was informed by his district manager that the consignment contained dangerous drugs. He instructed the Applicant to find out the customer.
6. Later, the customer went to the Applicant’s office to enquire about the shipment. The Applicant informed the district manager, who later came with the police. The customer and the Applicant were arrested.
7. The case was handed to the Anti-Narcotic Force (“ANF”). The Applicant was questioned. He was soon released but the police asked him to find the owner of the identity card, which was used by the customer to place shipment.
8. The Applicant eventually found out the identity card belonged to a man called Irfan. Irfan said he had lost the card for two years and had reported the loss to the police already. The police cleared the Applicant and Irfan. They only charged the customer but granted him bail.
9. A few months later, the customer confronted the Applicant in the street. He was holding a pistol. He threatened to kill the Applicant and his family if he would not change his statement to the police.
10. The Applicant told his boss what had happened. The boss reported the matter to the police. They asked the Applicant to be careful as they knew the customer belonged to a notorious mafia group in Karachi.
11. Six weeks later, the customer approached the Applicant again. He asked the Applicant to change his evidence. The Applicant refused. The customer then took out a pistol and fired some shots into the air. He asked the Applicant to reconsider his situation and threatened to kill him and his family.
12. The Applicant made a report to the police. The ANF officers said as the drug case had gone to the court, they could not take further action.
13. The Applicant thought the Pakistan authorities would not help him. He closed down his business and moved to live in another place for five months. He left Pakistan for China on 6 August 2013.
14. The Applicant was arrested by the police in Hong Kong on 27 February 2014. He claimed he sneaked into Hong Kong on 4 February 2014.
15. The Applicant raised a non-refoulement claim on 1 March 2014.
16. In late 2015, the Applicant learnt someone called his wife to enquire his whereabouts and threatened to kidnap his daughter. The Applicant's family had to live in hiding.
17. The Applicant was informed by his sister that their mother was injured in a hit and run incident. The sister said it was done by the drug dealers.
18. The Applicant also learnt the owner of the identity card, Irfan, had been killed. The Applicant thought Irfan was murdered by the mafia group.
19. 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: (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].
20. On 11 May 2018, the Applicant applied for leave for judicial review.
Respondents
21. 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.
22. 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.
23. 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 application in relation to the Board's decision only.
The Director's decision
24. In his decision dated 26 April 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
25. The Applicant appealed to the Board. The Adjudicator interviewed him on 7 March 2018.
26. Though the Adjudicator found a number of unconvincing features in the Applicant's allegation, he was prepared to accept the Applicant was a witness in a drug trafficking case and under pressure from a criminal gang. However, even on the Applicant's own account the Adjudicator found there was no state involvement, consent or acquiescence. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had not been inflicted with ill-treatment to a minimum level of severity. The Adjudicator was not satisfied the criminal gang really wanted to execute their verbal threats to harm or kill the Applicant or his family. He did not find any evidence to prove the Applicant's mother was injured in a hit and run incident staged by the drug dealers.
27. The Adjudicator did not find the Pakistan police ignored the Applicant’s complaint of fear. He found the Applicant had not done enough to seek help from the Pakistan authorities and thus failed to prove reasonable state protection was not available to him. The Adjudicator found internal relocation was viable in the Applicant's case in any event.
28. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 25 April 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
29. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 23 above, I would deal with the current application in relation to the Board's decision only as the Director's decision had gone on appeal to the Board as rehearing.
30. The Applicant complained there was no legal representation after the Director's decision dated 26 April 2017. He also raised his language problem.
31. The Applicant complained the appeal bundle was served on him only shortly before the Board hearing and there was a lack of translation of its contents.
32. The Applicant said it was wrong for the Adjudicator to find he was an educated man and could have taken his case to the higher authorities in Pakistan. The Applicant said it was almost impossible for him to do so because of the corruption there.
Court hearing
33. The hearing was scheduled for 31 August 2018. The notice of hearing was sent to the Applicant's reported address. It was returned and marked ‘incomplete address’.
34. The Applicant was absent from the scheduled hearing on 31 August 2018. Efforts were made to contact the Applicant on the two phone numbers he had left on record. One was invalid. The other was always directed to a voice mail saying the number was temporarily unavailable
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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]
37. The Applicant complained there was no legal representation after the Director's decision dated 26 April 2017.
38. 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.
39. The Applicant raised his language problem.
40. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
41. In the current application, Form 86 and the Applicant's affirmation were prepared in English. 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 he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
42. The Applicant complained he received the appeal bundle only shortly before the Board hearing. He did not say when he actually got the bundle.
43. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.
44. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment in the appeal hearing.
45. The Applicant said it was wrong for the Adjudicator to find he was educated and had not done enough to seek help from the Pakistan authorities.
46. The Adjudicator was cognizant of the Applicant's education level and his working experience. He did not say the Applicant was a very educated man. He merely considered the Applicant was in a position to take his case to the higher authorities but he did not.
47. The Applicant said it was almost impossible for him to complain to the higher authorities in his country because of the corruption there. The Adjudicator was aware there were problems with the Pakistan police but he was satisfied from the country-of-origin information ("COI") that there were systems of checking and redress in Pakistan. He found the Applicant had not done enough to seek help from the Pakistan authorities and thus failed to prove reasonable state protection was not available to him. The Adjudicator’s finding was not Wednesbury unreasonable.
48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He 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. He considered the Applicant’s claim 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
49. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 22nd 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 22/8/2019
Allah Rakha
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 22/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7092/17/5/98/P1430
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 893/16 (formerly RBCZ 3001102/14)
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.
[9] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] 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.
[11] 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.
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