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HCAL670/2017
[2018] HKCFI 1410
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 670 of 2017
BETWEEN
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Farrukh Zaib |
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 Pakistan national. He is now aged 31 (DOB: 30 December 1986).
2. The Applicant claimed he accidentally injured Zaka Ullah (“Zaka”) in Pakistan. He feared he would be harmed or killed by people of the Pakistan People’s Party (“PPP”) who took revenge for Zaka.
3. In 2010, the Applicant joined the Pakistan Muslim League (Quaid e Azam Group) [PML(Q)] and participated in the party’s activities. His father was also a member of the party. The Pakistan People’s Party (“PPP”) was an opposition party.
4. In August 2010, the Applicant's father stood for election on behalf of PML(Q) in his village. The opponent candidate was Bilal Ahmed of PPP.
5. On the election day, there was a fight between the two parties. Weapons were used. The Applicant was injured. He tried to fire a gunshot into the air. However, he was pushed by someone and the bullet accidentally fractured Zaka’s knee. Zaka was the nephew of Bilal Ahmed. A PPP member Muhammad Afzaal threatened to take revenge. He threatened to kill the Applicant.
6. Some PPP members lodged a complaint against the Applicant and his friends over the shooting. The Applicant’s uncle made a counter-complaint to the police but he was ignored. The Applicant said the police were corrupt and had close connection with PPP. They would turn a blind eye to the illegal activities of PPP.
7. Zaka’s left leg had to be amputated due to the gun wound. The Applicant then fled to Karachi for fear of revenge from the PPP people. Later, he moved to a place closer to his home village. In November 2011, he went back to Karachi and left Pakistan for China by air at the end of that month.
8. The Applicant stayed in China for almost a year. In November 2012, he sneaked into Hong Kong by boat. He subsequently sought non-refoulement protection.
9. The Applicant claimed his enemies were still looking for him in Pakistan. He did not think the Pakistan police or authorities would help him. He also thought internal relocation was not viable because PPP members were all over the country.
10. 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].
11. On 25 September 2017, the Applicant applied for leave for judicial review.
Chronology of events
12. Things happened in this order: –
| 2011-11-28 |
The Applicant left Pakistan for China. |
| 2012-11-6 |
The Applicant sneaked into Hong Kong from China by boat. |
| 2012-11-13 |
The Applicant was arrested by the police for illegal remaining. |
| 2012-11-16 |
The Applicant raised a non-refoulement claim. |
| 2015-9-10 |
The Director held a screening interview with the Applicant. |
| 2015-9-17 |
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”] |
| 2016-11-22 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk). |
| 2016-12-6 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2016-12-13 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”] |
| 2017-4-12 |
The Applicant appeared before the Board in person for appeal. |
| 2017-9-1 |
The Board refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-9-25 |
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 Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as proposed respondent and the Director as interested party. Thus, the Board is the putative respondent and the Director is the putative interested party.
Director of Immigration (the Director)
15. In the Director’s decision dated 17 September 2015, the immigration officer did not make specific finding on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer found the level of risk of harm against the Applicant was low. He considered the alleged enemies did not have real intention to kill the Applicant. He did not believe PPP would be all after the Applicant in Pakistan. There was also no evidence of state instigation.
16. The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) to show there had been ongoing reforms in the country. The officer was satisfied reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
17. The officer did not accept the Applicant had any real torture risk, persecution risk or BOR3 risk. He refused the Applicant’s claim with respect to those three applicable grounds.
18. 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.
19. In the Director’s further decision dated 13 December 2016, the immigration officer considered the Applicant failed to establish a personal and real BOR2 risk. He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
20. The Adjudicator found the Applicant had been speculating and exaggerating his risk. He was not satisfied the Applicant really needed non-refoulement protection.
21. The Adjudicator was aware there were reports of police corruption in Pakistan but there was also objective COI showing the Pakistan government had taken practical steps to monitor the conduct of the police and to improve their effectiveness. He was satisfied reasonable state protection and internal relocation were available to the Applicant.
22. The Adjudicator considered there was no real persecution risk, torture risk, BOR3 risk or BOR2 risk. He refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
Grounds for judicial review
23. In Form 86 and his affirmation, the Applicant complained he had not received the Director's letter dated 22 November 2016 inviting him to submit additional facts for the consideration of BOR 2 risk. He was not given further interview before the Director decided against him on that BOR2 risk issue. The Applicant said he was not aware of the BOR2 decision even during the appeal hearing in front of the Adjudicator. The Applicant alleged he was not told the appeal included the BOR2 risk issue.
24. The Applicant also complained that he was not provided with legal representation and language assistance for his appeal to the Board and for judicial review.
25. The Applicant further complained the Adjudicator cherry-picked information; took into account COI that was not officially recognised or simply hearsay; relied on outdated cases; ignored evidence and COI favourable to his claim; ignored he had suffered serious injuries and mental/physical stress; rushed to decision; rendered wrong findings and conclusions.
Court hearing
26. In Form 86, the Applicant requested a hearing. The hearing took place on 30 May 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.
27. The Applicant confirmed all the grounds of judicial review were in the documents. He had nothing to add. The Applicant said although he had been living at the same Yuen Long address since August 2015, he had not received anything from the Director regarding the BOR2 risk issue. He, however, admitted he was able to receive other letters at the same address.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[5]
30. The Applicant complained he had not received the Director’s letter dated 22 November 2016 inviting him to submit additional facts for the consideration of BOR2 risk and he had not received the Notice of Decision on that issue (dated 13 December 2016). Yet, he had been able to receive other letters at the same address where he had been living since August 2015. That sounds strange.
31. It is more inconceivable to hear the Applicant said he was not aware of the BOR2 decision even during the appeal hearing before the Adjudicator. The Applicant alleged he was not told that the appeal included the BOR2 risk issue.
32. The Adjudicator specifically asked the Applicant whether he had anything to supplement in respect of the Notice of Further Decision. The Applicant replied he had nothing further to say.[6] (That Notice of Further Decision referred to the Director's further decision dated 13 December 2016 [7] on the BOR2 risk issue.)
33. I do not accept the Applicant’s assertions.
34. The Applicant also complained he was not given further interview by the Director on the BOR2 risk issue.
35. The Director had received no additional facts from the Applicant on the issue. It was right for the Director to continue to deal with the Applicant’s claim with respect to BOR2 risk without the need to hold further interview. The Applicant failed to tell this court what more he could say of his claim with respect to BOR2 risk. In his affirmation, the Applicant only stated he could produce proof but he could not be specific in court. There is no substance in such complaint.
36. The Applicant further complained that he was not provided with legal representation and language assistance for his appeal to the Board and for judicial review.
37. In the current application, the Applicant had Form 86 and his affirmation well presented in English. Apparently, he could find someone to provide him with language assistance.
38. The Applicant had legal assistance from the Duty Lawyer Service up to the Director's decision coming out on 17 September 2015. He cannot demonstrate to this court how his claim would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
39. For his current application of judicial review, the Director of Legal Aid on 8 February 2018 refused to grant aid to the Applicant.
40. 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]
41. There are other complaints made by Applicant against the Adjudicator. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his findings, conclusions and decisions 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. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
42. The Director is an interested party in the current application. I have also reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in para. 41 above is also true of the Director. The Director had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
43. 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 28th day of June 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 28/6/2018
Farrukh Zaib
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 28/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2315/15/9/168/P639
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 620/15 & RBCZ 9000861/16 (formerly RBCZ/1105/12)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[6] The Adjudicator’s Report, para 21.
[7] The Adjudicator’s Report, para 5.
[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
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