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HCAL304/2017
[2018] HKCFI 998
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 304 of 2017
BETWEEN
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SOHAIL Asif |
Applicant |
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and |
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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 Pakistan national. He is now aged 34 (DOB: 10 October 1983).
2. The Applicant arrived in Hong Kong as a visitor on 3 March 2009. He was allowed to stay here for a week. However, he overstayed and was arrested by the police on 7 July 2009. He then lodged a torture claim.
3. The Applicant claimed he would be harmed or killed by his girlfriend’s family if he was refouled to Pakistan.
4. The Applicant said that in 2000 he met a girl called Shagufta. She belonged to a rich family. Her family was very powerful and had connection with the police, senior government officials and the ruling party Muslim League. That family had killed their enemies in the past.
5. Shagufta’s family disapproved the relationship between the girl and the Applicant. The girl’s father threatened to kill the Applicant if he would see Shagufta again. The girl’s brothers also threatened to kill the Applicant. They had actually assaulted him. The Applicant did not report the matter to the police because Shagufta’s family were connected to politicians and the police. The girl’s father forced the Applicant to leave his village. The Applicant did but later returned home. He kept contact with Shagufta and received continuous threats from her family.
6. In 2007, Shagufta left her family to stay with the Applicant. Her brothers came to the Applicant’s house with guns and fired shots to give warning to the Applicant's family. Shagufta’s father later promised that the Applicant could marry his daughter. The girl then returned home but her father reneged on his promise. In subsequent quarrels, the Applicant was further attacked and injured by Shagufta’s brothers.
7. In April 2008, Shagufta committed suicide since her family forced her to marry someone else. The girl’s brothers and company went to the Applicant’s place to vent their anger. They assaulted the Applicant’s family and fired shots into the air. The brothers said they would seek revenge on the Applicant for Shagufta’s death, no matter where the Applicant would hide in Pakistan.
8. In the circumstance, the Applicant left Pakistan for Malaysia on 14 May 2008. He stayed there for 8 to 9 months. He did not think it was safe in Malaysia so he went to Thailand in February 2009. After staying there for two weeks, he came to Hong Kong as a visitor and sought non-refoulement protection here.
9. 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].
10. On 19 June 2017, the Applicant applied for leave for judicial review.
Chronology of events
11. Things happened in this order: –
| 2008-5-14 |
The Applicant left Pakistan for Malaysia. He later went to Thailand. |
| 2009-3-3 |
The Applicant arrived in Hong Kong as a visitor. He was allowed to stay until 2009-3-10. |
| 2009-7-7 |
The Applicant was arrested by the police while overstaying. |
| 2009-7-8 |
The Applicant lodged a torture claim. |
| 2015-2-16 |
The Director held a screening interview with the Applicant. |
| 2015-3-6 |
The Director refused the Applicant’s claim with respect to three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3) risk. |
| 2015-3-20 |
The Applicant appealed to the Board. |
| 2016-9-14 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2016-10-3 |
The Applicant failed to submit any additional facts by deadline or thereafter. |
| 2016-11-4 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (or BOR2) risk. |
| 2016-12-7 |
The Applicant was absent from the scheduled appeal hearing before the Board. |
| 2017-5-19 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. |
| 2017-6-19 |
The Applicant applied for leave for judicial review. |
Respondents
12. 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.
13. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents.
14. 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]
15. In the present case, the two Director's decisions were more than three months old by the time the Applicant filed his current application on 19 June 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 19 May 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 19 June 2017; the application against the Board's decision was made within time.
Director of Immigration (the Director)
16. In the Director’s decision dated 6 March 2015, the immigration officer found the ill-treatment which the Applicant claimed was of low intensity and frequency. There was no state acquiescence. On the other hand, reasonable state protection and internal relocation alternatives available to the Applicant. The officer found that BOR3 risk was not likely to materialise; there was no persecution risk as the Applicant’s case was only a private dispute with enemies and not related to race, region, nationality, membership of a particular social group or political opinion. It is also not accepted that the Applicant had suffered severe pain or suffering within the definition of ‘torture’, so there was no torture risk.
17. The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).
18. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of a fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 3 October 2016 or thereafter.
19. In the Director’s further decision dated 4 November 2016, the immigration officer considered the Applicant was not entitled to life risk protection because he failed to establish there was any personal and real BOR2 risk.
20. The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk).
TCAB/NCPO (the Board)
21. The appeal hearing before the Board was scheduled for 7 December 2016. The Applicant was absent. The secretariat of the Board then sent the Applicant a letter of directions on the same day to ask him for an explanation of his absence. The letter required the Applicant to reply within seven days and to give an explanation with documentary evidence to support his reasons for failing to attend the appeal hearing. There was no reply from the Applicant.
22. Despite his absence, the Adjudicator continued to consider the Applicant’s appeal, on papers only.
23. In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case. He found the Applicant’s claim was bare assertion and much of it was based on hearsay and without proof; some allegations were illogical. On the other hand, the Adjudicator found that there were reasonable state protection and internal relocation available to the Applicant in Pakistan. The Adjudicator’s conclusion was that the Applicant had not made out a case that warranted non-refoulement protection in respect of (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (or BOR3 risk) and (iv) life risk (BOR2 risk).
24. On 19 May 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Court hearing
25. In Form 86, the Applicant requested a hearing. The hearing took place on 24 April 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court.
26. The Applicant said that he never received any notice of decision from the Director or from the Board. He was assisted by the Duty Lawyer Scheme up to the screening interview with the Director but not thereafter. In mid-2015, the Scheme told him his case was finished and he could appeal. However, the Applicant did not receive any notice of decision. He went to the Immigration Department to inquire but the people there were rude to him. They did not tell him clearly what the situation was. The Applicant said he had not received any notice of the Director’s decision or further decision.
27. The Applicant said he filed an appeal to the Board himself but he did not receive any notice of the scheduled appeal hearing. Thus, he did not know he had to turn up for the appeal hearing on 7 December 2016. The Applicant also said he did not receive the letter from the Board after he had missed the appeal hearing. He just waited and only went to the Immigration Department in May 2017 to make enquiries. Only then was he given the notices of the Director's decision and further decision plus the Board's decision. The Applicant then applied for judicial review. He had the assistance of a ‘friend’s friend’ to prepare his 7-page affirmation for judicial review against the Director and the Board.
28. The Applicant said he had already submitted all the information and materials to the Director and the Board for their consideration.
Grounds for judicial review
29. In support of his application, the Applicant submitted a 7-page affirmation dated 19 June 2017 [Folio 2] making allegations against both the Board and the Director. In his affirmation, the Applicant listed these complaints: –
(a) Lack of legal representation.
(b) Lack of language assistance.
(c) Wrongful exercise of case management power.
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’.[6]
Ground (a): Lack of legal representation
32. The Applicant complained that he was not provided with sufficient legal assistance.
33. In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Scheme in 2015; there was no more legal assistance available to him after the Director had made his first screening decision dated 6 March 2015.
34. 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.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail.
Ground (b): Lack of language assistance
35. The Applicant complained that he was not provided with sufficient interpretation/translation assistance.
36. In court, the Applicant admitted he actually had friends to render assistance to him. Thus, he could find someone to prepare the 7-page affirmation for judicial review. He did not have to pay that ‘friend’s friend’. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.
Ground (c): Wrongful exercise of case management power
37. The Applicant complained that he had not received any notice or letter from the Board. That is why he was absent from the scheduled appeal hearing on 7 December 2016. He did not know he had to provide an explanation for his absence. He complained the Adjudicator went on to consider his appeal and even said he “evinced an intention not to attend any oral hearing”. [8]
38. The Applicant said though he lived continuously at the same address of Room 13, 1/F, Ming Tak Building, 418 Ping Fu Path, Kwai Chung between April 2013 and March 2018, he did not receive any notice of decision from the Director or the Board. However, he admitted he himself filed the appeal to the Board. [According to the record, that was done on 20 March 2015, i.e., 14 days after the Director’s decision dated 6 March 2015.]
39. If the Applicant had not received any notice of the Director's decision dated 6 March 2015, how would he know the screening result and then file an appeal within the 14-day limitation period? It is quite clear the Applicant did receive notice of the Director's decision in March 2015.
40. The Applicant lied. I am sure he did receive notices of decision from the Director and the Board all in time. I am also sure he got the Board's decision notice of appeal hearing scheduled on 7 December 2016 as well as the letter sent to him subsequently to ask him for an explanation of his absence.
41. The Applicant lied to this court and failed to explain for his absence from the Board’s appeal hearing. In the circumstance, it is reasonable to infer he had chosen to be absent from that appeal hearing and not to answer the letter which demanded him of an explanation.
42. The Adjudicator’s view that the Applicant had no intention to attend the appeal hearing was correct. That was a fair comment to make. Nevertheless, the Adjudicator considered the Applicant’s case on its merits and came to his finding, conclusion and decision which were not Wednesbury unreasonable. Ground (c) fails.
43. In my judgement, the Director and the Adjudicator had proper basis for their respective 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 the Applicant’s complaints against the Director or the Board, who had each engaged in 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and they applied the law correctly. They considered the Applicant's claim 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
44. The Applicant's complaints are not reasonably arguable 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.
Dated 11th day of May 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 11/5/2018
SOHAIL Asif
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 11/5/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1225/15/3/145/P387
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 528/14 (formerly RBCZ 1687/09)
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[8] The Adjudicator's report, para 21.
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