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HCAL121/2018
[2018] HKCFI 1993
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 121 of 2018
BETWEEN
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Butt Waqas Arif |
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 38 (DOB: 23 March 1980).
2. The Applicant claimed he would be killed by the Meher family because of a land dispute.
3. The Applicant said the Meher family had five brothers including Malik Chand (“Chand”) and Malik Shahid (“Shahid”). Both belonged to the Pakistan Muslim League (Q) [PML(Q)]. Chand was a member of the Provincial Assembly while Shahid was a member of the National Assembly. Shahid killed a villager many years ago but he was able to escape punishment. He became a member of the National Assembly in 2005. The Applicant alleged the Meher family had strong influence in the area. They bribed the police and the latter would turn a blind eye to the Mehers’ wrongdoings.
4. In 1999, some workers employed by the Meher family trespassed the land belonging to the Applicant’s father. The Applicant’s father informed the police. The police said they could not help and gave no reasons. It was suspected that the police had been influenced by the Meher family.
5. Chand and some men guarded the trespassed land and refused to return it to the Applicant's father. They even opened fire at the Applicant and his father. They threatened to harm the Applicant's family. The matter was reported to the police again but the police did not take any action.
6. A week later, there was a fight between both sides. The Applicant was not there. He learnt that someone had fired a shot at his brother and wounded the brother’s leg. The police were informed. Again, they took no action.
7. The Applicant’s father moved the whole family to live in Lahore. Then he arranged for the Applicant’s brother to go to Dubai and for the Applicant to go to Qatar.
8. Between 2002 and 2009, the Applicant went to Qatar on a number of occasions. Each time, he stayed there for three months to a year. When he went back to Pakistan, he would stay in Lahore and keep himself away from the Meher family.
9. The Applicant felt he could not live in Pakistan or Qatar. He decided to go to Hong Kong for non-refoulement protection. On 21 July 2009, he left Pakistan for China. He entered Hong Kong illegally from China on 8 August 2009. He was arrested by the police on the next day. The Applicant raised a torture claim on 12 August 2009.
10. The Applicant said the Meher family had threatened his father that they would kill all his children if the Applicant's father tried to take back the land.
11. In July or August 2013, the Applicant learnt his father died in Pakistan. The Applicant told the Director that his father died of pressure from the Meher family. However, in his notice of appeal he claimed his father was murdered.
12. The Applicant said the land was still in the possession of the Meher family. He was the eldest son in the family and should inherit the land from his late father. He claimed there was still danger against him in Pakistan. The police would not protect him and internal relocation was not viable.
13. In the ensuing two-tier screening process here (“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].
14. On 26 January 2018, the Applicant applied for leave for judicial review.
Chronology of events
15. Things happened in this order: –
| 2009-7-21 |
The Applicant left Pakistan for China. |
| 2009-8-8 |
The Applicant entered Hong Kong from China illegally by boat. |
| 2009-8-9 |
The Applicant was arrested in Hong Kong. |
| 2009-8-12 |
The Applicant filed a non-refoulement claim. |
| 2015-3-18 |
The Director interviewed the Applicant. |
| 2015-3-20 |
The Director interviewed the Applicant again. |
| 2015-4-30 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director’s decision”] |
| 2016-4-14 |
The Applicant appeared before the Board in person for appeal. |
| 2017-5-18 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk). |
| 2017-6-1 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-6-14 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”] |
| 2018-1-12 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-1-26 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 complaint on a rehearing basis.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Hence the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
18. In the Director’s decision dated 30 April 2015, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s own account of allegations the officer found the level of risk of harm against the Applicant was low.
19. The officer was aware there were reports of police corruption in Pakistan. However, there was also country-of-origin information (“COI”) showing ongoing reforms in the country. The Pakistan government had taken practical steps to monitor the police and to improve the effectiveness. The officer found the Applicant was not targeted by any Pakistan authorities. He was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
20. The officer did not accept the Applicant faced any torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
21. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
22. In the Director’s further decision dated 14 June 2017, the officer considered the Applicant was not entitled to life risk protection because he failed to establish there was a real BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to the fourth ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
23. The Adjudicator found there were inconsistent and inconceivable features in the Applicant's allegations. He found the Applicant’s saying his father was murdered was only a fabricated boost of his weak non-refoulement claim.
24. The Adjudicator found that even on the Applicant's own account of events, the Applicant had not been inflicted with ill-treatment to a minimum level of severity and his complained situation was merely a private dispute.
25. The Adjudicator considered that if the Applicant's purported risk did exist, it was only a localised one. He had regard of relevant COI and concluded internal relocation was available to the Applicant in any event. [5]
26. The Adjudicator found no substantial grounds for believing the Applicant would face any real risk that warranted non-refoulement protection.[6] He refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds for judicial review
27. In his affirmation, the Applicant complained the Adjudicator was unfair and rendered unreasonable decisions against him; the Adjudicator failed to meet the greater care and duty owed to him as a self-represented claimant; there was no legal representation for his appeal to the Board.
28. The Applicant also complained there was a lack of translation/interpretation service. He said he was not given a translated copy of the non-refoulement claim form (“NCF”) so he could not find out if the interpreter had been translating/interpreting the basis of his claim properly.
29. The Applicant complained the Director for not explaining his decision on BOR2 risk. He also said he tried to submit additional facts/information on the issue on 31 May 2017. However, the staff in the Immigration Department refused to accept. He turned to the Board but was unable to get any assistance. The Applicant further complained the Board and the Director failed to hold any interview/hearing for the BOR2 issue.
30. The Applicant complained the Adjudicator failed to explain fully his decision and failed to consider properly his father’s murder and the misconduct of the Pakistan authorities. He accused the Adjudicator had cherry-picked COI to reject his claim.
31. Lastly, the Applicant complained the Director was absent from the appeal hearing before the Board.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing took place on 20 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.
33. The Applicant was asked what additional facts or information he tried to submit to the Director on 31 May 2017. He said it was a one-page document written in English by his friend according to his own instruction. He could not remember the content. As the staff in the Immigration Department did not accept the document, he destroyed it afterwards. The Applicant could not produce a copy of the alleged document to the court.
34. The Applicant complained he was not given an interview by the Director or the Board on the BOR2 issue. I asked him what more he would have submitted to the Director and the Adjudicator if there was an interview specifically held on the issue. The Applicant merely replied there was still danger in Pakistan and nobody was at home.
35. The Applicant said apart from the destroyed one-page document which he could not submit to the Director on 31 May 2017, he had produced all information and proofs to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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’.[7]
38. The Applicant complained there was no legal representation for his appeal to the Board.
39. 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] There is no evidence the Applicant had re-applied for legal assistance from the Duty lawyer Service after the Director's decision. He also cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
40. The Applicant complained there was a lack of translation/interpretation service and he was not given a translated copy of the non-refoulement claim form (NCF), so he could not find out if the interpreter had been interpreting/translating the basis of his claim properly.
41. In his current application for leave for judicial review, the Applicant had Form 86 and his affirmation prepared in English. If he did not prepare those himself, it at least showed he could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance. I am sure if there had been anything wrong with the interpreter’s translation/interpretation in the NCF, the Applicant would now have pointed it out with the language assistance from his friend. His complaint has no substance at all.
42. The Applicant complained the Director for not explaining his decision on the BOR2 issue.
43. The Director’s further decision dated 14 June 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 30 April 2015, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 14 June 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR being violated (including the right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 30 April 2015.
44. The Applicant said he tried to submit additional facts/information on the BOR2 issue on 31 May 2017. The staff in the Immigration Department refused to accept. He turned to the Board for help but was unable to get any assistance. However, the Applicant could not produce the alleged one-page document. He even could not tell the court what its content was. I do not accept his unproven assertion.
45. The Applicant further complained the Board and the Director failed to hold any interview/hearing on the BOR2 issue. However, in court the Applicant could not tell me what he could have submitted on the issue except repeating his alleged problem and that it was not safe for him to return to Pakistan. I do not accept the Applicant had anything more to submit to the Director and the Adjudicator for their consideration of his claim with respect to all applicable grounds including BOR2 risk. In the circumstance, there was indeed no need to hold any further interview/hearing on BOR2 risk. The Director and the Adjudicator were right to deal with the Applicant's claim with respect to all the four applicable grounds on the available information/materials before them.
46. The Applicant complained the Director was absent from the appeal hearing before the Board. I cannot see how the Director's absence would prejudice the Applicant’s appeal.
47. The Applicant only named the Adjudicator as respondent. 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. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
48. 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 3rd day of September 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 3/9/2018
Butt Waqas Arif
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 3/9/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1511/15/5/43/P467
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 893/14 & RBCZ 9001873/17 (formerly RBCZ 2079/09)
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] The Board’s decision, paras 69-77.
[6] Ibid., paras 52-68.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
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