MEHMOOD AQSAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL246/2017

[2018] HKCFI 1564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 246 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

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 47 (DOB: 1 January 1971). 

2.  The Applicant claimed that he feared he would be ill-treated or killed by people of the Pakistan Muslim League (“PMLN”).

3.  The Applicant was originally a supporter of PMLN. Abdul Haq and Sad Begum were his uncle and aunt. Riaz was their son. In late 2012, a burglary occurred in Riaz’s house. A lot of properties were stolen. The police later arrested three burglars, who were also supporters of PMLN. However, they were soon released due to the intervention of a PMLN member cum National Assembly Member called Nadeem. The burglars only returned some of the stolen properties to the victims. Due to this incident, the Applicant and Riaz lost faith in PMLN.

4.  In June 2013, the Applicant and Riaz changed to support another party, the Pakistan Tehreek-e-Insaf (“PTI”).  They helped in PTI’s election campaign. A number of people followed them to change to support PTI.  Nadeem sent a few PMLN people to ask the Applicant to stop supporting PTI.

5.  Eventually, Nadeem won his seat. PMLN also became the ruling party in the country. Nadeem wanted to seek revenge on the Applicant and Riaz. Both were scared. Riaz returned to France where he had been residing; the Applicant planned to go to China.

6.  In early 2014, some men armed with guns approached the Applicant. One of them was the right-hand man of Nadeem. Someone pointed a gun at the Applicant’s head and threatened to kill him if he continued to support PTI. Later, the men left. The Applicant did not report the matter to the police. He thought the police would side with the PMLN people.

7.  The Applicant sought refuge in his friend’s home. Someone advised him to seek asylum in Hong Kong. He finally left Pakistan on 24 January 2014 and entered Hong Kong illegally on 3 February 2014. Within the same month, he approached UNHCR and was referred to the Immigration Department. The Applicant subsequently raised a non-refoulement claim.

8.  The Applicant learned Riaz went back to Pakistan once or twice a year for short stay. Nadeem and the PMLN people did not harm Riaz but only threatened him not to support PTI. Nadeem was, however, still angry with him and was looking for him.

9.  The Applicant thought his enemies could locate him easily in Pakistan so internal relocation was not viable. He said the Pakistan police were corrupt and only helped influential people, particularly those from PMLN.

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 26 May 2017, the Applicant applied for judicial review.

Chronology of events

12.  Things happened in this order: –

2014-1-24	The Applicant left Pakistan.
2014-2-3	The Applicant entered Hong Kong illegally from China.
Feb 2014	The Applicant approached UNHCR. He was referred to the Immigration Department.
2014-4-7	The Applicant filed a non-refoulement claim.
2015-12-28	The Director held a screening interview with the Applicant.
2016-2-19	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”]
2017-2-1	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2017-2-15	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-2-23	The Applicant appeared before the Board for appeal.
2017-3-9	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2017-5-12	The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-5-26	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 respondent. He did not name any interested party. However, in matters involving non-refoulement claim the Director must be an interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.

Director of Immigration (the Director)

15.  In the Director’s decision dated 19 February 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer considered the level risk of harm against the Applicant by the alleged enemies was low. The officer did not believe Nadeem and the PMLN people would still be targeting the Applicant.

16.  The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the Pakistan government had taken practical steps to monitor the police and to improve their effectiveness. The officer was satisfied that reasonable state protection was available. Internal relocation was also viable.

17.  The officer did not accept the Applicant would face any real torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement 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 life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.

19.  In the Director's further decision dated 9 March 2017, the officer considered the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

20.  The Adjudicator did not make any specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the Adjudicator considered the Applicant had not been inflicted with any ill-treatment or harm. The Applicant's perceived situation was not instigated, consented or acquiesced by the state. A few years passed since the Applicant had left his country. The Adjudicator was not satisfied the Applicant was in any imminent danger now. 

21.  The Adjudicator did not accept the Applicant would face any real risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

Grounds for judicial review

22.  The Applicant did not write grammatically in his affirmation. However, the meaning was clear. The Applicant merely stated he still feared PMLN. He did not want to go back to his country for fear of losing his life.

No request of hearing

23.  Order 53, rule 3 of the Rules of the High Court provides: –

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.

24.  In Form 86, the Applicant has not requested a hearing.  Nor has he stated such a wish in his affirmation.  There is nothing ambiguous in his application that calls for a hearing.  As such, I proceed to deal with his application for leave for judicial review on consideration of documents only.

Discussion

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

26.  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]

27.  In the present case, the Director rendered his decision with respect to BOR2 risk on 9 March 2017. That was after the appeal hearing which took place on 23 February 2017. Apparently, the BOR2 issue was not touched on in the appeal hearing on 23 February 2017. The Adjudicator gave his decision on 12 May 2017 in relation to all the four applicable grounds. He must have considered the BOR2 risk only after the Director's further decision dated 9 March 2017.

28.  The Adjudicator could hold another interview with the Applicant simply on BOR2 risk or write to him inviting for submission on the issue. There was no evidence that the Adjudicator did. This court has to consider whether the Applicant had not been given full opportunities to submit on BOR2 risk in the circumstance.

29.  The Director had issued a letter dated 1 February 2017 (before the appeal hearing) to invite the Applicant to submit additional facts for the consideration of BOR2 risk. The Applicant failed to respond by the deadline of 15 February 2017 (still before the appeal hearing) or thereafter. The Adjudicator would surely be aware of this. He could take it that the Applicant had nothing to submit on BOR2 risk.

30.  If the Applicant did have anything to submit on BOR2 risk, he certainly would have replied to the Director's letter dated 1 February 2017 or he would have included such submission in his affirmation for the current application for leave for judicial review. There was none of those. Actually, the BOR2 issue was not a ground of complaint by the Applicant. I am sure the Applicant had already made all the submission he wanted to make for his non-refoulement claim.

31.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. In my judgement, 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. 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’s report showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. 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.

32.  The Director is an interested party. I have also reviewed his decision and further decision under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 31 above is also true of the Director. His findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Director had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

33.  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.

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

[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.