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HCAL769/2018
[2019] HKCFI 538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 769 of 2018
BETWEEN
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Khan Naveed Ahmed |
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 36 (DOB: 15 October 1982).
2. The Applicant said he would be harmed or killed by Altaf, who was a member of the Pakistan People’s Party (“PPP”). Altaf was closely connected to a member of the Provincial Assembly and Altaf’s father was once a governor in the country.
3. The Applicant said he and his family members supported the Pakistan Muslim League Q (“PMLQ”). In 2008, Altaf persuaded him to join PPP. The Applicant refused. A week later, he was attacked by 15 people. He was slightly injured.
4. The Applicant did not seek police assistance because PPP was in power. He believed PPP had influence over the police. The police would ignore him because he was a supporter of PMLQ. The Applicant also claimed he was afraid of the police because he had been falsely accused by PPP members for carrying a knife. The police arrested him. The case dragged on. He was eventually fined.
5. The Applicant left home to stay with his relatives. He returned later.
6. In mid-2009, the Applicant was again attacked by Altaf’s supporters. He was injured. Again, he did not report the incident to the police. He hid himself at home for some months.
7. On 17 September 2009, the Applicant left Pakistan for China. He was refused entry so he returned to Pakistan.
8. On 20 October 2009, the Applicant left Pakistan for China again. This time, he was allowed entry.
9. The Applicant entered Hong Kong illegally on 27 October 2009. He was arrested on the same day. He subsequently raised a torture claim.
10. The Applicant said that after he had come to Hong Kong, he heard nothing of Altaf.
11. The Applicant claimed the Pakistan authorities would not provide assistance to him. His complaint would be ignored.
12. The Applicant said internal relocation was not viable because Altaf was affiliated with PPP, which had a nationwide network. He said his enemies could locate him easily.
13. 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].
14. On 3 May 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2009-10-20 |
The Applicant left Pakistan for China again. |
| 2009-10-27 |
The Applicant sneaked into Hong Kong. He was arrested by the police for illegal remaining. |
| 2009-10-29 |
The Applicant lodged a non-refoulement claim. |
| 2015-3-16 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [‘the Director's decision”] |
| 2017-5-11 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-5-25 |
The Applicant submitted a letter to the Director, saying he was unable to return to Pakistan at the moment. |
| 2017-5-31 |
The Director again invited the Applicant to submit additional facts for the consideration of BOR2 risk. There was no further response from the Applicant. |
| 2017-6-21 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [‘the Director's further decision”] |
| 2018-1-29 |
The Applicant appeared before the Board for appeal. |
| 2018-4-19 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board's decision’] |
| 2018-5-3 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. 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.
18. 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
19. 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 refused the Applicant’s claim with respect to all the four applicable grounds.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed him on 29 January 2018.
21. The Adjudicator found the Applicant’s claim unreliable. He considered it odd that the Applicant should specifically choose to come Hong Kong for non-refoulement protection when he could have done so while in transit in Thailand or in China.
22. Even on the Applicant's account, the Adjudicator was not satisfied the Applicant had been inflicted with ill-treatment to a minimum level of severity. He found the Applicant was not a target of the Pakistan state. There was no state instigation or acquiescence. The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal protection were available to the Applicant.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 19 April 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
24. In his affirmation, the Applicant did not state any complaint against the Adjudicator. His complaint was against the Director for not holding interview on BOR2 risk and he was not legally represented then.
Court hearing
25. The hearing took place on 7 August 2018. The Applicant was in person. A Punjabi interpreter rendered service in court.
26. The Applicant said a friend helped him to prepare Form 86 and the affirmation.
27. When asked what his complaints against the Adjudicator were, the Applicant said the Adjudicator had not made due consideration of his claim. He complained there was no legal representation after the Director's decision and there was no language assistance.
28. 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
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] 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]
31. The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 16 March 2015.
32. 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.
33. 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 when he was represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. There was no evidence he complained to the Adjudicator that he had difficulty in preparing for the appeal. The Applicant had much exaggerated his language problem.
34. The Applicant complained the Adjudicator had not made due consideration of his claim.
35. The Adjudicator’s report showed the Adjudicator had attended to all aspects of the Applicant's case. He had also referred to relevant COI for proper understanding of the situation in Pakistan.
36. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion 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 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
37. 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 7th day of March 2019
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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
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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 7/3/2019
Khan Naveed Ahmed
Applicant’s ref. no:
Nil.
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 7/3/2019
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1235/15/3/155/P389
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1112/14 & RBCZ/9001758/17 (formerly RBCZ/2845/09)
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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