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HCAL1069/2017
[2018] HKCFI 2409
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1069 of 2017
BETWEEN
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Ilyas Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 45 (DOB: 1 January 1973).
2. The Applicant said he would be harmed or killed by people of an opposition party, the Pakistan Muslim League (N) [“PML(N)”].
3. The Applicant claimed he had been a supporter of Pakistan Tehreek-e-Insaaf (“PTI”) since 1996. He maintained contact with a leader at the Union Council level who was called Mukthar Ahmed (“MA”). The Applicant helped MA in publicity works.
4. There were conflicts between PTI and an opposition party PML(N).
5. An election was to be held in October 2013. The Applicant and ten odd PTI supporters worked in a campaign booth. Some PML(N) peopled came to cause disruption. An argument ensued. The PML(N) peopled left finally.
6. In the weeks following, the PML(N) peopled came back frequently. One of them was called Rashid. They asked the PTI workers to close down their booth or they would be hurt. The PTI workers refused.
7. In September 2013, the PML(N) peopled including Rashid came again. This time, they vandalized the equipment in the booth. A PML(N) member even fired his gun into the air. Many PTI workers left the booth but the Applicant and another stayed behind. They were beaten up by the PML(N) people. The Applicant was injured.
8. The Applicant’s wife tried to make a report to the police. However, the police refused to register her complaint. A police officer told the Applicant's wife that the police would not take action against PML(N) because PML(N) was powerful and influential in the country.
9. The Applicant was advised by his family and a friend to leave Pakistan. On 30 September 2013, he left Pakistan for China. Two months later, he sneaked into Hong Kong. On 3 December 2013, the Applicant was arrested by the police for illegal remaining. He later lodged a non-refoulement claim.
10. The Applicant maintained contact with his wife, who told the Applicant that his enemies were still looking for him.
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 13 December 2017, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2013-9-30 |
The Applicant left Pakistan for China. He sneaked into Hong Kong two months later. |
| 2013-12-3 |
The Applicant was arrested by the police for illegal remaining. |
| 2013-12-7 |
The Applicant lodged a non-refoulement claim. |
| 2016-6-29 |
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’] |
| 2017-6-28 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-12 |
The Applicant failed to submit any additional facts by the deadline or thereafter. |
| 2017-7-27 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-10-17 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board's decision’] |
| 2017-12-13 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 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]
16. In his original Form 86 (dated 13 December 2017), the Applicant did not state the respondent and subject matter of his application. On 19 June 2018, the Applicant submitted an amended Form 86 naming the Board as respondent. Thus, the Board is the putative respondent.
17. In an application for leave for judicial review in a non-refoulement case, the Director must be an interested party. Therefore, the Director is the putative interested party.
The Director's decision
18. In the Director's decision dated 29 June 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He 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 those three applicable grounds.
19. In the Director's further decision dated 27 July 2017, the Director decided the Applicant faced no BOR2 risk. He refused the Applicant's claim with respect to that last applicable ground.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed him on 17 October 2017 but the Applicant indicated he had nothing further to add.
21. The Adjudicator found the Applicant had not been inflicted with serious injuries by his alleged enemies and he was not targeted by PML(N). The Adjudicator also found the Applicant was not a genuine non-refoulement protection seeker.[6] In any event, the Adjudicator was satisfied reasonable state protection was available to the Applicant.[7] Internal relocation was also viable.[8]
22. The Adjudicator found the Applicant failed to prove any torture risk, BOR2 risk, BOR3 risk or persecution risk. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
23. Despite given extra time for the Applicant to state his grounds of judicial review, he could only put forth some vague allegations in his affirmation dated 19 June 2018. The Applicant complained the Adjudicator relied on country-of-origin information ("COI") and failed to understand the real situation in Pakistan. He accused the Adjudicator of adopting a biased and formula approach to deal with his claim. The Adjudicator’s decision was unfair.
Court hearing
24. The first hearing took place on 15 June 2018; the second was on 28 June 2018. The Applicant was in person. An Urdu interpreter provided service in court.
25. The Board's decision was dated 8 December 2017. The Applicant took out the application for leave for judicial review on 13 December 2017. Yet, he only applied for legal aid almost five months later. The first hearing scheduled for 15 June 2018 was thus within 42 days from the Applicant's application of legal aid made on 9 May 2018. The Applicant explained he did not know about legal aid so he had not applied for it earlier. He only got advice from a friend later.
26. It was not true the Applicant knew nothing of legal aid until recently. In his letter dated 13 December 2017, it was so stated “…also I am apply a legal aid that’s why I need a time bundle of thanks.” Apparently, the Applicant knew he could apply for legal aid as soon as he filed the current application. He did not apply for legal aid immediately then but delayed for almost 5 months.
27. The Applicant had delayed substantially for no good reason in applying for legal aid. The 42-day stay stipulated under the Legal Aid Ordinance (Cap. 91) should be lifted. I thus proceeded to deal with the Applicant's application for leave for judicial review.
28. In his Form 86 dated 13 December 2017, the Applicant did not state the respondent and subject matter of his application. He provided no grounds of judicial review either. In court, the Applicant said he wanted to seek leave for judicial review of the Board's decision. I adjourned the matter to 28 June 2018 for the Applicant to state his grounds of judicial review clearly.
29. On 19 June 2018, the Applicant submitted an amended Form 86 naming the Board as respondent. He also submitted a new affirmation, which only had one paragraph. In court, the Applicant said he had instructed a friend to write for him in English. That paragraph was not grammatical but it could still be understood. The Applicant complained the Adjudicator unjustly relied on country-of-origin information ("COI") and failed to understand the real situation in Pakistan. He accused the Adjudicator of adopting a biased and formula approach to deal with his claim and his decision was unfair. In court, the Applicant just repeated there was still danger in his country.
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’.[9] 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.” [10]
32. The Applicant complained the Adjudicator unjustly relied on country-of-origin information ("COI") and failed to understand the real situation in Pakistan.
33. The Adjudicator had considered country-of-origin information ("COI") relevant to the Applicant's case. He found reasonable state protection and internal relocation were available to the Applicant. Such findings were not Wednesbury unreasonable. The Applicant failed to prove the COI did not correspond to the real situation in Pakistan.
34. The Applicant accused the Adjudicator of adopting a biased and formula approach to deal with his claim and the Adjudicator’s decision was unfair. Again, the Applicant failed to be specific. There was no evidence to support his accusation.
35. The other complaints by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. He 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. None of the Applicant's complaints is substantiated.
Conclusion
36. 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 the review.
Dated 20th day of November 2018
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his 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 20/11/2018
Ilyas Muhammad
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 20/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4127/16/7/97/P1043
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 264/16 & RBCZ 9002545/17
(formerly RBCZ 1021/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] The Board's decision, para. 22
[7] Ibid., paras 26-28.
[8] Ibid., paras 41-45.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
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