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HCAL701/2018
[2019] HKCFI 220
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 701 of 2018
BETWEEN
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Ahmed Zulfiqar |
Applicant |
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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 national of Pakistan. He is now aged 50 (DOB: 1 January 1969).
2. The Applicant claimed he would be harmed or killed by the Taliban (Tehrik-e-Taliban Pakistan) [“TTP”] because he had been recruited by the Pakistan army to spy on TTP.
3. The Applicant claimed he joined the Pakistan army in 1988. He was trained as a spy. After training, he was asked to return to his home village.
4. Between 1990 and 1999, the Applicant worked in the United Arab Emirates. He then returned to Pakistan.
5. In 2001, the Applicant was assigned duties by the Pakistan army in 2001. Colonel Abdul instructed him to work as undercover. The Applicant therefore joined TTP in May 2001.
6. In September 2001, the Applicant provided the Pakistan army with information on TTP’s ammunition storage. He then quit TTP on Colonel Abdul’s instruction in November 2001. Acting on the Applicant's information, the Pakistan army seized TTP’s arms and ammunition in December 2001.
7. In the following 8-9 years, the Applicant was not given further duties by the Pakistan army. He was not troubled by TTP during that period.
8. In 2009 or 2010, two unknown men approached the Applicant. They said they knew the Applicant had worked for the army and TTP would not spare him. The men then left.
9. The Applicant feared TTP would kill him but he did not report the matter to the police. He thought the police were corrupt and would not keep his secret. The Applicant went to speak Colonel Abdul, who had already retired from the army in 2007/2008. Colonel Abdul advised the Applicant to go into hiding. The Applicant did but he learnt some unknown people were still looking for him.
10. Colonel Abdul later advised the Applicant to leave his village. The Applicant then relocated himself to other parts of Pakistan. He learnt his enemies continued to look for him. He believed they could easily find out his whereabouts.
11. The Applicant had stayed in Islamabad and Rawalpindi for 10-12 months before he left Pakistan for China in March 2012. He sneaked into Hong Kong on 21 March 2012. Four days later, he raised a torture claim[1]. At that time, the Applicant alleged he faced risk from TTP because he refused to join them.
12. In August 2012, the Director of Immigration (“the Director”) rejected the Applicant’s torture claim. The Applicant did not appeal. He failed to report for recognizance from 3 September 2012. He was arrested by the police 15 months later in February 2014. Then he raised a non-refoulement claim. In September 2014, the Applicant disclosed for the first time to the Director that his risk arose from his work for the Pakistan army to spy on TTP. He explained he now had Colonel Abdul’s permission to disclose such state secret.
13. The Applicant said TTP were powerful terrorists. The Pakistan government or police would not arrest them so there was no state protection for him.
14. In the ensuing two-tier screening process, the Director and the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
15. On 23 April 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| Mar 2012 |
The Applicant left Pakistan for China. |
| 2012-3-21 |
The Applicant entered Hong Kong illegally. |
| 2012-3-25 |
The Applicant was arrested by the police for illegal remaining. |
| 2012-3-27 |
The Applicant raised a torture claim. |
| 2012-8-8 |
The Director refused the Applicant’s torture claim. The Applicant did not appeal. He failed to report for recognizance from 3 September 2012. |
| 2014-2-4 |
The Applicant was re-arrested by the police. |
| 2014-2-12 |
The Applicant raised a non-refoulement claim. |
| 2015-4-9 |
The Director refused the Applicant's claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Director's decision”] |
| 2016-8-9 |
The Applicant appeared before the Board for appeal. |
| 2016-12-12 |
The Board refused the Applicant's appeal with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Board’s decision”] |
| 2016-12-16 |
The Director invited the Applicant to submit additional facts for the consideration of the last applicable ground: BOR2 risk. |
| 2016-12-30 |
The Applicant failed to submit additional facts by the deadline. He submitted a letter on 3 January 2017. |
| 2017-1-3 |
The Director refused the Applicant's claim with respect to the last applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-4-6 |
The Board refused the Applicant's claim with respect to the last applicable ground: BOR2 risk. [“the Board’s further decision”] |
| 2018-4-23 |
The Applicant applied for leave for judicial review. |
Respondents
17. 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.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
19. In Re Moshsin Ali, the Court of Appeal states that “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] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decisions only.
The Director's decision
20. The Director refused the Applicant's torture claim in August 2012. There was no appeal.
21. In his decision dated 9 April 2015, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. He also considered 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 two applicable grounds.
22. In his further decision dated 3 January 2017, the Director did not accept the Applicant faced BOR2 risk. He refused the Applicant's claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
23. The Applicant appealed to the Board against the Director's decision dated 9 April 2015. The Adjudicator interviewed him on 9 August 2016.
24. The Applicant later appealed against the Director's further decision dated 3 January 2017. The Adjudicator held no further interview.
25. The Adjudicator found a number of implausible and incredible features in the Applicant's allegation. The Applicant had produced a copy of letter purportedly signed by Colonel Abdul. The letter was dated 10 October 2014. The writer of the letter stated “in the past few days” the Applicant provided “very vital information regarding the Talebans to the government of Pakistan”. The Adjudicator found that assertion was inconsistent with the Applicant's claim that the spying information was provided to the Pakistan army in 2001. By October 2014, the Applicant had already come to Hong Kong. The Adjudicator did not find the Applicant reliable. He did not accept the Applicant faced danger. On 12 December 2016, the Adjudicator refused the Applicant’s claim with respect to persecution risk and BOR3 risk.
26. On the last applicable ground of BOR 2 risk, the Adjudicator was aware the Applicant had submitted a letter dated 3 January 2017. The Adjudicator, however, considered there was nothing in the letter that could overturn the Director's decision on BOR2 risk. The Adjudicator maintained his finding that the Applicant's claim was incredible. He concluded the Applicant faced no BOR2 risk. On 6 April 2018, the Adjudicator refused the Applicant's claim with respect to that last applicable ground.
Grounds of judicial review
27. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 19 above, I shall deal with the Applicant's complaints in relation to the Board's decisions only because the Director's decisions had gone on appeal to the Board as rehearing.
28. 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.
29. The Applicant complained he had no legal representation after the Director’s decision dated 9 April 2015. He also complained there was no language assistance.
30. The Applicant complained the Adjudicator acted in a hurried way and failed to take into account the additional facts he had submitted to the Immigration Department via a letter of 3 January 2017.
31. The Applicant complained there was no hearing on BOR2 risk. He also complained he had not received the Director’s letter dated 16 December 2016 inviting him to submit additional facts.
Court hearing
32. The hearing took place on 25 July 2018. The Applicant was in person. An Urdu interpreter provided service in court.
33. The Applicant said some people in the mosque helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
34. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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]
37. On 23 April 2018, the Applicant applied for leave for judicial review with respect to the Board's decision and the Board's further decision. The application was taken out within three months of the Board's further decision but more than three months from the Board's decision. I considered the Board's two decisions were part and parcel of the Applicant's single claim of non-refoulement protection. The current application for leave for judicial review as a whole should not be regarded as late.
38. The Applicant said he had not received the Director’s letter dated 16 December 2016 inviting him to submit additional facts. That was not consistent with what he said in his writing. The Applicant explained he was not able to meet the deadline of 30 December 2016 (the deadline for reply to the Director's letter) because he had to seek help from others. He was only able to reply by letter on 3 January 2017.[8]
39. The Applicant complained the Adjudicator failed to take into account the additional facts he had submitted to the Immigration Department via his letter of 3 January 2017. That was not true. The Adjudicator had considered the said letter. He viewed there was nothing in that letter to overturn the Director's conclusions.[9] The Applicant could not demonstrate the Adjudicator was wrong.
40. The Applicant complained there was no hearing on BOR2 risk. He accused the Adjudicator acted in a hurried way.
41. The Applicant confirmed in court that he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. He failed to show he had worthwhile or effective representations to make and thus failed to show it was necessary for the Director and the Adjudicator to hold further hearing solely for the consideration of BOR2 risk.
42. The Applicant complained he did not have legal representation and language assistance after the Director's decision dated 9 April 2015.
43. 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.[10] 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.
44. The Applicant raised his language problem. In the current application, he was able to find some people in the mosque to help him to prepare Form 86 and the affirmation. He had also sought help from someone to prepare the letter of 3 January 2017 for submission to the Immigration Department. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
45. 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
46. 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 1st day of February 2019
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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
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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 1/2/2019
Ahmed Zulfiqar
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 1/2/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1407/15/4/99/P438 & BOR 40/17/1/17/P14
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 668/14 & RBCZ 9001214/16 (formerly RBCZ 2002240/14)
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, para 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] The Board's further decision, para 8.
[9] Ibid., para 15.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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