RAZA AHMED v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL796/2017

[2018] HKCFI 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 796 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;
	consideration of the 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 38 (DOB: 18 October 1979). 

2.  The Applicant said he would be harmed or killed by his enemies in Pakistan.  

3.  In the early years, the Applicant’s relatives had dispute with others resulting in some people being killed and some being imprisoned. What the Applicant learnt from his relatives’ experiences were (i) the corrupt police in Pakistan could be bribed and they did not carry out their duties properly; (ii) people would resort to violence as a solution rather than to seek police assistance.

4.  In early 1996 when the Applicant was aged 16, some youths accused him of cheating in a cricket game. They beat him up. The Applicant’s uncle Ali was a police officer. He learnt about this and went to talk to one of the boys’ father Taj. The matter flared up. Taj led some armed men to look for Ali. The two sides exchanged fire with guns. The Applicant was injured slightly in the incident. However, he did not report the matter to the police because his uncle and grandfather told him not to.

5.  On 4 September 1996, Taj went with some armed men to the house of the Applicant’s aunt. They fired gunshots and killed the Applicant’s aunt Fatima. The Applicant’s family reported the matter to the police. Taj and some others were arrested.

6.  The Applicant was one the witnesses testifying against the accused in the trial. Three (Ghulam Hussain, Nazakat Ali Khan and Wajid Ali Khan) were convicted of killing Fatima but Taj and a few others were acquitted. The Applicant believed Taj had bribed the prosecution to get some evidence destroyed.

7.  The three convicted men were sentenced to 10 years’ imprisonment but they were released after having served only 2 odd years. The Applicant believed the early release was caused by a judge, who was a relative of one of the convicted.

8.  Since the Applicant had given evidence in the trial relating to his aunt’s death, the opposite side made it clear that they would seek revenge on the Applicant and his uncle Ali. The Applicant dared not report the threat to the police because his enemies were members of the Pakistan People Party (the ruling party of the country at that time). The Applicant believed the police would inform his enemies to come to kill him.

9.  Between 1998 and 2009, the Applicant served in the army and lived in army camp. However, in December 2004 the Applicant’s enemies thought the Applicant was at home. They came to look for him, only to find he was not there. They caused damage to the Applicant’s house but no one was hurt. The Applicant’s family reported the matter to the police. They had no money to bribe the police. The police would not carry out investigation. The Applicant believed it was also because his enemies had political influence. The enemies were affiliated with Sadar, who was a minister in Punjab and a member of the Provincial Assembly. The police would not go against Sadar.

10.  After this incident, the Applicant's enemies did not go to the Applicant’s house to cause further trouble.

11.  In 2009, the Applicant left the army. He went to different places (Rawalpindi, Gujrat and Lahore) to make a living. He tried to avoid his enemies so he did not live in one place for long. In those three places, the Applicant had not met with any threat or harm from his enemies. Yet, he did not feel safe and he found it hard to live in such circumstances. He decided to leave the country. On 17 February 2011, the Applicant left Pakistan for China to work for a company there.

12.  In July 2011, the Applicant came to Hong Kong on a proper visa. He stayed only for a few days and then returned to China.

13.  In China, the Applicant’s relatives warned him that his enemies were planning to come to China for him. The Applicant then decided to go to Hong Kong.

14.  On 13 September 2011, the Applicant went to Hong Kong again from China. He was allowed to stay until 20 September 2011.

15.  On 16 September 2011, the Applicant filed a refugee application with UNHCR. He overstayed after 20 September 2011.

16.  On 19 October 2011, the Applicant surrendered to the Immigration Department. On 2 November 2011, the Applicant lodged a torture claim.

17.  On 28 March 2012, the Applicant's refugee application was rejected by UNHCR.

18.  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].

19.  On 20 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

20.  Things happened in this order: –

2011-2-17	The Applicant left Pakistan for China. He worked there.
July 2011	The Applicant came to Hong Kong on a visitor visa. He stayed for a few days before returning to China.
2011-9-13	The Applicant came to Hong Kong again as a visitor. He was allowed to stay for seven days until 2011-9-20.
2011-9-16	The Applicant applied to UNHCR for refugee status.
2011-9-21	The Applicant began overstaying in Hong Kong.
2011-10-19	The Applicant surrendered to the Immigration Department after having overstayed for nearly a month since 2011-9-21.
2011-11-2	The Applicant lodged a torture claim.
2012-3-28	UNHCR refused the Applicant's refugee status application.
2016-4-13	The Director held a screening interview with the Applicant.
2016-12-1	The Applicant submitted additional facts to the Director.
2017-4-13	The Director refused the Applicant’s claim with respect to the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (or BOR 2 risk.)
2017-8-21	The Applicant appeared in person before the Board for appeal.
2017-8-25	The Adjudicator refused the Applicant's claim with respect to the four applicable grounds.
2017-10-20	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) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.

23.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board instead of the Adjudicator.

24.  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]

25.  In the present case, the Director's decision dated 13 April 2017 was more than three months old by the time the Applicant filed his current application on 20 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 25 August 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 20 October 2017; the application against the Board's decision was made within time.

26.  In the current application, the Director is the first putative respondent; the Board is the second putative respondent.

Director of Immigration (the Director)

27.  In the Director’s decision dated 13 April 2017, the immigration officer found the Applicant had over-perceived his risk. The officer found no substantial grounds for believing that the Applicant would have any real risk of harm by his enemies upon his return to Pakistan. He did not accept the Applicant was a target of the state or that the state was assisting his alleged enemies. There was no state instigation or state acquiescence.

28.  While accepting there was corruption in the Pakistan police force, the officer was satisfied there had been reforms and improvements ongoing in recent years. As such, there was still reasonable state protection available to the Applicant. It was the Applicant who unduly refused to trust the authorities in Pakistan.

29.  The officer also found reasonable internal relocation was available to the Applicant.

30.  The officer considered the Applicant failed to establish a case of torture risk. He also found the Applicant’s fear of persecution risk was not well-founded. He further found the Applicant faced no real BOR 2 risk or BOR3 risk.

31.  The officer rejected the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (or BOR2 risk).

TCAB/NCPO (the Board)

32.  In his report, the Adjudicator set out the facts and the law clearly.  The Adjudicator considered that the Applicant had certain Pakistan court documents to substantiate some of his allegations. The Adjudicator was willing to set aside his doubts. He accepted the Applicant would face risk of harm by his enemies in Pakistan if the Applicant went back to live in his hometown. The Adjudicator, however, considered that the Applicant could reasonably move to live in another city called Hyderabad, which was 1,200 km from the Applicant's home town. Hyderabad was near to Karachi (the capital city) and had a population of millions. The Applicant told the Adjudicator that he would be able to find a job and a place to live there.[6] While not feeling satisfied with the general security in Hyderabad, the Applicant agreed that city was no less secure than Karachi.[7]

33.  In the light that reasonable internal relocation was available to the Applicant and his enemies were not likely to bother looking for him after so many years since the alleged conflicts, the Adjudicator did not consider the Applicant had any real risk that warranted non-refoulement protection.[8]

34.  On 25 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

Against the Director

35.  The Applicant complained the Director cherry-picked information; failed to consider COI favourable to his case regarding police corruption in Pakistan; failed to consider properly the issue of state acquiescence (including extended state acquiescence); was prejudicial and wrong to find there was reasonable state protection available to him.

Against the Adjudicator

36.  The Applicant complained the Adjudicator failed to make sufficient inquiry; failed to give him sufficient opportunity to arrange relevant evidence and was wrong to rule that he had failed to adduce credible evidence to prove his claim.

Court hearing

37.  In Form 86, the Applicant requested a hearing.  The hearing took place on 11 May 2018. The Applicant was in person. An Urdu interpreter rendered interpretation service in court.

38.  In court, the Applicant first applied for adjournment. He said he applied for legal aid on 15 January 2018 but was refused on 23 March 2018. He then appealed against the legal aid refusal order on 3 April 2018. The appeal would be heard on 8 June 2018. The Applicant asked this court to adjourn the current hearing for leave for judicial review to after his appeal on the legal aid refusal. He said he wanted legal representation.

39.  The Adjudicator refused the Applicant’s appeal as early as 25 August 2017. The Applicant only applied for legal aid almost five months later in mid-January 2018. He offered no reason as to why he did not apply for legal aid soon after the Adjudicator’s decision in late August 2017. The Applicant was to be responsible for the delay. Even though the legal aid refusal appeal would be heard in less than a month’s time, I see no reason why the current application for leave for judicial review should be adjourned for that. There is no indication that the Applicant would have a reasonable chance to win that appeal in June coming and then be assured of legal representation. I thus refuse the Applicant's asking for adjournment.

40.  In court, I asked the Applicant if he could elaborate on any of his grounds as stated in Rider B of Form 86, or to provide particulars for his complaints. The Applicant said he could not. He had nothing to add to those stated grounds.

Discussion

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

42.  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]

43.  Although the immigration officer considered the Applicant had over- perceived his risk, he did not reject the Applicant's version as incredible. He still evaluated the situation as the Applicant claimed.

44.  The Adjudicator was more liberal than the immigration officer in his interpretation of the Applicant’s situation. The Adjudicator was willing to put aside any doubt of the Applicant's allegations. He accepted the Applicant’s claim of fear of risk as something more than being remote or speculative. However, he considered such risk would only be real if the Applicant went back to live in his home town. The Adjudicator found the Applicant could live away from his home town to avoid his enemies and thus avoid the feared risk. The Adjudicator considered there was reasonable internal relocation in Hyderabad. That was a large city near Karachi (the capital of Pakistan). The Adjudicator reasoned that the Applicant’s enemies would not be motivated to look for the Applicant away from his home town after so many years since the conflicts.

45.  The Adjudicator was right to point out that an applicant, even though facing some risk of harm, would not have a real risk if he could be reasonably relocated internally in his country.[10]  Reasonable internal relocation means the new place of living would be reasonably safe and the Applicant would not suffer undue hardship.

46.  Although Hyderabad was 1,200 km from the Applicant's home town, it was still within Pakistan and therefore much nearer than any other foreign refuge, say Hong Kong. The Applicant at his age and ability could make a living in Hyderabad, which was a reasonable shelter in his case.

47.  The immigration officer and the Adjudicator, though by slightly different routes, had come to the same conclusion, i.e., the Applicant's case did not warrant non-refoulement protection.

48.  The Applicant raised some complaints against the Director and the Adjudicator (see paras 35-36 above). Those complaints are vague. The Applicant could not provide particulars in court. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of those complaints.

49.  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. Both had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director’s report and the Adjudicator’s report showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.   

Conclusion

50.  The Applicant's complaints are not reasonably arguable against 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