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HCAL1143/2017
[2019] HKCFI 1401
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1143 of 2017
BETWEEN
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Shah Syed Muhammad Siddique |
Applicant |
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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 34 (DOB: 1 August 1984).
2. The Applicant claimed that he would be harmed or killed by members of the Muttahida Qaumi Movement (“MQM”). He was a Sunni Muslim; the MQM people were Shias. MQM was the ruling party in Karachi, where the Applicant lived and ran a tea shop.
3. The MQM people had been blackmailing the Applicant since 2011/2012. The Applicant paid them out of fear. He spoke to some policemen, who patronized his tea shop. Those officers said they could not do much since MQM was powerful.
4. The MQM people increased their extortion demand. The Applicant could not pay anymore. Those people then came to cause damage to the Applicant's shop. They opened fire into the air. An employee in the shop was hit accidentally by a bullet.
5. The MQM people threatened to kill the Applicant if he failed to pay them further. They also ordered him to close his shop. The Applicant then went to live in other places. He learnt his enemies continued to look for him and threatened to kill him. The Applicant said a shop owner in a similar situation was killed by the MQM people in early 2013.
6. The Applicant said he was targeted by MQM because he refused to pay them and many shop owners followed suit.
7. The Applicant feared his enemies would find him eventually. He left Pakistan for China on 18 January 2014.
8. The Applicant was arrested by the police in Hong Kong on 20 January 2014. He claimed he just entered Hong Kong. He raised a non-refoulement claim subsequently.
9. The Applicant said the Pakistan authorities could not protect him and internal relocation was not viable.
10. 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].
11. On 27 December 2017, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2014-1-18 |
The Applicant left Pakistan for China. |
| 2014-1-20 |
The Applicant was arrested by the police. He claimed he had entered Hong Kong on the same day from China. |
| 2014-1-23 |
The Applicant filed a non-refoulement claim. |
| 2016-2-12 |
The Director refused the Applicant’s claim with respect to these three applicable grounds:(i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director’s decision”] |
| 2017-8-18 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-9-1 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-9-6 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2017-10-12 |
The Applicant appeared before the Board for appeal. |
| 2017-12-1 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-12-27 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
13. 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.
14. In Re Moshsin Ali, the Court of Appeal ruled “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]
15. In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
16. In his decision dated 12 February 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also found 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.
17. In his further decision dated 6 September 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
18. The Adjudicator appealed to the Board. The Adjudicator interviewed him on 12 October 2017.
19. The Adjudicator found it was plausible that the Applicant had been extorted by the MQM people. However, they only threatened him. The Applicant had never been tortured. There was no evidence of ill-treatment reaching the minimum level of severity. The Adjudicator did not accept the MQM people really wanted to harm or kill the Applicant after he had closed his shop. He also found that even if MQM was in power in Karachi, there was no evidence of state acquiescence. The Applicant's complained situation was only a blackmail case. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
20. The Adjudicator did not accept the Applicant faced torture risk, persecution risk, BOR2 risk or BOR3 risk. On 1 December 2017, he refused the Applicant’s claim with respect to all the four applicable grounds
Grounds of judicial review
21. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
22. The Applicant complained he was not given legal representation after the Director's decision. He also complained about the lack of translation service and there was no means for him to find out if the interpreter had translated his claim (NCF statement) properly. He also said the interpreter in the Board hearing did not explain to him that the issue of BOR2 risk had been decided by the Director.
23. The Applicant accused the Adjudicator ignored the fact that the Director had not made thorough inquiry, so he had to tell the Adjudicator for the first time that he was targeted by MQM because they feared other shop owners might follow suit to refuse to pay extortion money.
24. The Applicant also accused the Adjudicator wrongly interpreted country-of-origin information ("COI") to conclude reasonable state protection was available to him.
25. The Applicant further complained the Adjudicator allowed the Director to be excused from the Board hearing.
Court hearing
26. The hearing was scheduled for 13 September 2018. The Applicant was absent. The notice of hearing was duly sent to the Applicant's reported address but it was returned due to ‘incomplete address’.
27. On the day of hearing, the Applicant's two mobile phone numbers were called. One was turned off; the other was invalid.
28. The court has not heard anything from the Applicant since then.
29. If the Applicant’s reported address was incomplete, it must be his own fault. He was absent so his application was considered on papers only.
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] 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.” [7]
32. The Applicant complained there was a lack of legal representation after the Director's decision dated 12 February 2016.
33. 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] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
34. The Applicant raised his language problem. In the current application, the Applicant had Form 86 and the affirmation prepared in English. Apparently, he could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
35. The Applicant complained his claim in NCF statement might not have been properly translated. That was mere speculation. The Applicant failed to point out there was really any translation mistake that had affected his claim.
36. The Applicant also complained he did not know the issue of BOR2 risk had been decided by the Director. He said he did not receive the Director's further decision dated 6 September 2017 and the interpreter did not tell him about the BOR2 decision too.
37. The Director's further decision was duly sent to the Applicant's reported address.
38. There was no evidence to support the Applicant's saying that he was ignorant of what issues were involved in his appeal. There was no proof of his accusation against the interpreter for the Board hearing. The Applicant made no complaint to the Adjudicator. In any event, the Applicant failed to inform the court what additional presentation he would and could have made in relation to the BOR2 risk issue.
39. The Applicant accused the Director had not made thorough inquiry from him, so he had to tell the Adjudicator for the first time that he was targeted by MQM because they feared other shop owners might follow suit to refuse to pay extortion money. The Adjudicator had considered such explanation but he rejected it as the Applicant’s afterthought.[9] The Adjudicator was entitled to his conclusion.
40. The Applicant also accused the Adjudicator wrongly interpreted country-of-origin information ("COI") to conclude reasonable state protection was available to him.
41. The Adjudicator studied relevant COI carefully. He had proper basis for his finding that reasonable state protection was available to the Applicant.
42. The Applicant complained the Adjudicator allowed the Director to be excused from the Board hearing. However, he failed to point out how that would prejudice his appeal.
43. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. The Adjudicator 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 claim carefully and applied the law correctly. 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. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 11th day of June 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 11/6/2019
Shan Syed Muhammad Siddique
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 11/6/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3153/16/2/119/P843
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2095/15 & RBCZ 9002128/17 (formerly RBCZ 1292/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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, paras 31-45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The Board's decision, paras 47 and 60.
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