FAISAL MUHAMMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1151/2017

[2018] HKCFI 1257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1151 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only
	consideration of 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 30 (DOB: 8 February 1988). 

2.  The Applicant said he would be harmed or killed by his uncle Haji Riaz (“Haji”) due to a land dispute between the Applicant's family and Haji. There was also difference in political affiliation between them. The Applicant supported the Pakistan People’s Party (“PPP”) while Haji was a member of the Pakistan Muslim League (Nawaz) (“PMLN”).

3.  The Applicant claimed Haji was a gunman working for an eminent political and military figure called Qadir, who for years had been the Minister for States and Frontier Regions of Pakistan. Haji thus enjoyed immunity from engaging in criminal activities. He wanted to take a piece of land from the Applicant’s father and for that often threatened the latter. The Applicant's father had actually given the land to the Applicant's eldest brother Niaz.

4.  In 2006 (when the Applicant was around 18), Haji came to his house and fired gun shots into the air. The matter was reported to the police and the media. A policeman demanded bribe money. The police soon arrested two of Haji’s men. However, the police also arrested the Applicant and took him to the police station by force. There, the Applicant was stripped, hung up and beaten with sticks and pipes repeatedly. He was later dumped in the jungle. His brother found him and took him to the hospital. The Applicant was severely wounded but Haji came to threaten the doctors to stop treating the Applicant.

5.  A few days later, Haji came to the Applicant’s house and demanded the Applicant to come out. Haji threatened to kill the Applicant. The matter was again reported to the police but the police would not take action due to the strong influence of Haji.

6.  In fear, the Applicant moved to live elsewhere. He changed his address constantly. One month later, while travelling back home the Applicant was dragged out of a public vehicle by Haji and four people. They asked the Applicant why he had gone to the police. They left after beating up the Applicant. The driver of the vehicle told the Applicant that Haji had threatened all drivers to alert him when the Applicant appeared.

7.  The Applicant had to bribe the police to make a report of his being attacked. Yet, he was not given a copy of the report.

8.  The Applicant later learnt that two of Haji’s men had been arrested for the recent attack on him. However, they were not charged and actually released quickly.

9.  The Applicant was concerned about his safety. He stayed in different places and only returned home sometimes. He learnt that Haji had been looking for him and threatened his family that he would not spare him.

10.  In late 2006, the Applicant encountered Haji. Haji assaulted him and threatened to kill him if he should go to the police again.

11.  Later, the Applicant came across Haji again. Haji threatened that he would kill the Applicant if he saw the Applicant. He said that was the last warning to the Applicant.

12.  The Applicant stayed elsewhere in Pakistan for a few more months before he went to Dubai in early 2007. He learnt that Haji still looked for him and threatened to kill him.

13.  The Applicant had worked in Dubai for 7 years when he tried to seek asylum there in January 2014. He was soon arrested by the Dubai police and repatriated to Pakistan.

14.  Back in Pakistan, the Applicant lived in different places to dodge Haji.

15.  A year later in January 2015, the Applicant cast vote in an election in Pakistan. The next day, he and his brother Niaz encountered Haji. Haji was furious that they had cast vote contrary to his objection. He assaulted the Applicant and shot Niaz dead. The Applicant believed Haji killed Niaz because Niaz refused to hand over the land to him and because Niaz voted for PPP.

16.  Haji was arrested but no charge was laid against him.

17.  Two months later, Haji tried to shoot the Applicant but missed the target. The Applicant went to the police. He could not get help. He suspected the police were assisting Haji.

18.  The Applicant moved away from his home. While he was away, Haji’s protector Qadir came and attacked his another brother Tariq.

19.  The Applicant did not think the Pakistan authorities could protect him. He also thought internal relocation was not possible as Haji had strong networks to find him.

20.  The Applicant left Pakistan for China on 21 February 2016. Then he sneaked into Hong Kong and sought non-refoulement protection.

21.  The Applicant heard from his family that Haji still harassed them and threatened to send people to Hong Kong to kill him.

22.  The Applicant also alleged the Pakistan police threatened to detain his brother should the latter insist on getting documentary proof for the Applicant.

23.  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].

24.  On 28 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

25.  Things happened in this order: –

2016-2-21	The Applicant left Pakistan for China.
2016-3-9	The Applicant sneaked into Hong Kong by boat. He was arrested by the police for illegal remaining.
2016-3-13	The Applicant lodged a non-refoulement claim.
Aug – Sept 2016	The Director held three screening interviews with the Applicant.
2017-3-21	The Director refused the Applicant’s claim with respect to the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR 2 risk.) [“the Director's decision’]
2017-9-18	The Applicant appeared before the Board tor for appeal.
2017-12-22	The Board refused the Applicant's claim with respect to the four applicable grounds. [“the Board's decision’]
2017-12-28	The Applicant applied for leave for judicial review.

Respondents

26.  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.

27.  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.

28.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

29.  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]

30.  In the present case, the Director's decision dated 21 March 2017 was more than three months old by the time the Applicant filed his current application on 28 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 22 December 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 28 December 2017; the application against the Board's decision was made within time.

Director of Immigration (the Director)

31.  In the Director’s decision dated 21 March 2017, the immigration officer did not make specific findings on the Applicant's credibility. However, he did comment the Applicant lacked proof in many of his allegations.

32.  Even on the strength of the Applicant’s claim, the officer found no substantial grounds for believing the Applicant would have any real risk of harm by his enemies upon his return to Pakistan.

33.  The officer was aware there were reports of police corruption in Pakistan. However, there were also ongoing reforms in the country.  The officer was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.

34.  The officer considered the Applicant failed to prove any real risk that warranted non-refoulement.  He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).

TCAB/NCPO (the Board)

35.  The Applicant appeared before the Adjudicator. However, he told the Adjudicator that he did not have any statement to make. He said he did not want to answer any questions despite the Adjudicator had told him that there were significant problems with his claim that he should take the opportunity to explain. The Applicant requested the Adjudicator to make his decision based on the materials he had already submitted to the Immigration Department.

36.  The Adjudicator regarded the Applicant’s claim of risk to be ‘far-fetched and fanciful’. He considered the Applicant failed to prove any real risk that warranted non-refoulement protection. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

37.  In Enclosure 2 of Form 86, the Applicant complained the Director failed to consider properly the issues of state acquiescence and state protection; failed to appreciate the misconduct of the police and law enforcement agencies in his case; failed to properly consider country-of-origin information (“COI”) favourable to him; cherry-picked information; being prejudicial; failed to appreciate the undesirable human rights situation and incompetent administration in Pakistan; failed to attain high standards of fairness; failed to render reasonable decisions.

38.  The Applicant accused the Adjudicator failed to make sufficient enquiry; failed to take account he had limitation in adducing evidence; failed to give him sufficient chance to arrange evidence.

Court hearing

39.  In Form 86, the Applicant requested a hearing.  The hearing took place on 18 May 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court.

40.  In court, the Applicant said he knew little English. He needed language assistance. A friend helped him to prepare Form 86 and the affirmation for a charge of $3,000.

41.  The Applicant confirmed that all the grounds of judicial review were in the documents. He also confirmed that he had submitted all information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim.

42.  In his written complaints against the Adjudicator, the Applicant suggested his custody had caused him difficulty in adducing proof. However, the Applicant confirmed in court that he had only been detained for one odd months after arriving in Hong Kong before being released on recognisance from 8 April 2016.

43.  In court, I asked the Applicant if he could elaborate any of his complaints as stated in 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

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

45.  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]

46.  The Applicant’s complaints against the Director and the Adjudicator are vague. He cannot provide particulars in court.

47.  The Applicant had been released on recognisance since early April 2016. He had much time and opportunities to prepare his proof to be submitted to the Director and the Adjudicator.

48.  The Director found the Applicant's claim lacking in proof in many places. The Adjudicator explained to the Applicant that there were significant problems with his claim. Yet, the Applicant chose not to answer the Adjudicator’s questions.

49.  The Director and the Adjudicator each had engaged in sufficient joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. However, he failed to prove his claim before the Director and the Adjudicator.

50.  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 the Applicant's complaints.

51.  The Director and the Adjudicator had given balanced and careful consideration of the Applicant’s claim. They 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. The Director the Adjudicator were acquainted with the facts of the Applicant’s case. They considered the Applicant's case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had each achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

52.  The Applicant's complaints are not reasonably arguable against either 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