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HCAL 447/2019
[2022] HKCFI 1203
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 447 of 2019
BETWEEN
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Abbas Muhammad |
Applicant |
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And |
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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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 March 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) on 17 January 2019 (the “Decision”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures. The Director’s decisions in the Notice were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.
3. The Applicant is a Pakistani national, now aged 29. He allegedly entered Hong Kong illegally on 1 September 2016 and surrendered to the authorities on the next day. On 15 September 2016, he raised a non-refoulement claim by written signification. He completed a non-refoulement claim form (“NCF”) on 7 March 2016 and attended a screening interview on 26 March 2018.
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 29 March 2018, the Director rejected his claim under all four applicable grounds. His appealed to the Board against the decision of the Director in the Notice was dismissed by the Board’s Decision. On 18 February 2019, he applied for leave to apply for judicial review of that Decision.
5. Though he was prepared to attend a hearing to give further oral evidence, the Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, his supporting affirmation and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him under legal advice.
7. The Applicant is a Pakistani national. He received five years of primary education in Pakistan and worked as a carpenter for around eight years. His parents and siblings reside in Pakistan.
8. He claimed that he and his family were supporters of the Pakistan Muslim League (Quaid e Azam group) (“PML(Q)”). He attended meetings and rallies. He helped campaign for PML(Q) candidates in his home village.
9. In around May or June 2015, the Pakistan Peoples Party (“PPP”) won the local election for councillor. Soon after the election, three PPP supporters armed with handguns visited the Applicant and demanded that he stop supporting PML(Q) or he would not be able to continue his carpenter business. When the Applicant refused, they punched him for about 10 minutes.
10. The Applicant fled to a friend’s house in Lahore to avoid the PPP people. Thinking it was safe, he returned to his home village in April 2016. He was attacked by the same three men shortly after. He was beaten with iron rods for about 15 minutes and was hospitalized for two days. He fled to his friend’s home in Lahore again and then to Mainland China. He entered Hong Kong on 1 September 2016.
Finding of the Board
11. The Board tested the Applicant’s evidence against credible Country of Origin Information (“COI”). It identified significant inconsistencies which showed that the Applicant had little knowledge about PML(Q) and the elections in issue. For example, contrary to the COI, the Applicant said he did not have a membership card because there was no membership system for PML(Q).
12. The thrust of Applicant’s first account stated in his written representation on 15 September 2016 was significantly inconsistent with his account in the NCF. In the written representation, he told the Director that he supported PPP and was assaulted by members of Pakistan Muslim League-Nawaz (“PML(N)”) who wanted to kill him. In his NCF given by him a year and half later, he said he supported PML(Q) and was assaulted by members of PPP. He explained that he could not read English and the written representation was prepared by his friend on his behalf who was mistaken about his case. When confronted with the fact that the written representation was written on the Immigration Department form by an interpreter at the Immigration Department office, he changed his evidence and explained that he made the mistake as he was under tension. He was unable to explain what caused the tension. The Board considered it inconceivable that he would make such a mistake.
13. The Board was not satisfied that the Applicant was a member of PML(Q). However, the Board was prepared to accept that he was a grass root supporter of PML(Q) and that he had been attacked in May or June 2015 and again in April 2016. But the Board did not consider the harm constituted severe pain and suffering as to amount to torture nor was it inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The Board did not accept that the attacks were politically motivated because the Applicant had no political profile and that the assailants were not from PPP. There was also no reason why having won the election PPP would still find it necessary to threaten the Applicant. The Board rejected the Applicant’s assertion that he was threatened because he might be of value to PPP. It concluded that there was no real risk that the Applicant will experience harm if he is returned to Pakistan and hence, he is not entitled to protection on the basis of Torture Risk.
14. The Board found that the harm did not constitute cruel, inhuman, degrading treatment or punishment within the meaning of BOR 3 Risk ground. Besides, state protection is available to prevent the risk. Hence, the Applicant is not entitled to protection on the basis of BOR 3 Risk ground. For the same reasons, the Board found there is no real risk that the Applicant would be arbitrarily deprived of his life in violation of BOR 2 Risk ground. Hence, the Board rejected the Applicant’s claim under BOR 2 Risk ground.
15. For similar reasons, the Board considered the harm did not amount to the sustained or systemic violation of human rights demonstrative of a failure on the part of the state in protecting its citizens. As the assaults were not politically motivated, the harm was not related to one or more of the grounds protected under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group, political opinion. In addition, the Board found that internal relocation is a viable option to enable the Applicant to avoid the risk. Hence, the Board refused the Applicant’s claim to protection under Persecution Risk ground.
16. On the basis of the COI, the Board was also satisfied that adequate state protection is available to prevent or minimise the risk and the Applicant could also avoid the risk by internal relocation.
17. Applying the law applicable to non-refoulement protection under the USM to the facts in this case, the Board found that the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.
The applicable legal principles
18. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].
Grounds for judicial review
19. The Applicant’s grounds for application as advanced in his supporting affirmation are repetitive. They mainly revolve around procedural unfairness arising from:
(1) lack of legal representation (paragraph 12, 14, 15 and 26);
(2) lack of language assistance (paragraph 14, 15, 16, 18, 19, 21, 22, 23, 24, 26 and 32);
(3) the Board’s failure to give reasons for its finding (paragraph 25);
(4) the Board making the Decision on a template basis (paragraph 13);
(5) the Board’s erroneous finding on availability of state protection (paragraphs 27, 28 and 29);
(6) the Board rejecting the Applicant’s evidence about his fear and risk (paragraphs 27 and 32); and
(7) the Board’s failing to find the Applicant is still at risk (paragraph 34).
(1) Lack of legal representation; (2) lack of language assistance
20. These grounds are inter-related and may be conveniently dealt with together.
21. The Applicant was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board. He was provided with legal assistance and interpretation service in the preparation of his NCF and his attendance at the screening interview. He was also provided with an interpreter at the hearing of his appeal before the Board.
22. In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.
23. The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.
24. The Applicant said that the appeal bundle is in English. He did not have sufficient time to prepare for the hearing and did not have the means to hire the services of an interpreter. As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[15], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing he has access to interpretation services.
25. The appeal bundle is basically made up of his written representation, his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI. He knows what is contained in his written representation and his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. The Notice and COI are in English and unfortunately have not been translated. As mentioned above, he has to find assistance himself from among his friends and his ethnic community.
26. The single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused his non-refoulement claims. It was issued on 29 March 2018. The oral hearing was conducted 12 July 2018. In between, he had almost four months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim. Except for the COI, the information in the other documents in the bundle was provided by him, although reduced into English. He was familiar with the information. If he needed more time to prepare for the appeal, he could have raised that with the Board, but he did not.
27. The Applicant complained that the Decision was only sent to him by post and the Board did not provide translation or interpretation service to ensure he understood the Decision. He said he did not understand the Decision and could not properly prepare his application for leave to apply for judicial review. His complaint is premised on his belief that as an asylum seeker he is entitled as of right to such services at any time. That is not the law. For reasons as explained above, it was his choice to come to Hong Kong where the official languages are English and Chinese. He has to live with his disability if he is not conversant in these languages and has to find ways around it. The Decision was issued on 17 January 2019. He had three months to make his application for leave and thereafter ample time to prepare his submission, if he was minded to. As reflected by his supporting affirmation, in fact he has access to language assistance.
(3) Failure to give reasons
28. The Applicant quoted the case of AM v Director of Immigration & Anor[16] and argued that the Board was in breach of its duty to “provide adequate reasons in his decision to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant”.
29. The Decision ran as long as 57 pages. The Board meticulously followed AM v Director of Immigration & Anor to the letter. In paragraphs 25 to 79, it summarised the Applicant’s evidence in the written signification, his follow up letter, the NCF, the record of screening interview, and his testimony before the Board. It set out its approach in considering the evidence and then discussed (a) the evidence that the Board feels certain in paragraphs 89 to 90; (b) the evidence that the Board thinks are probably true in paragraphs 91 to 93; (c) the evidence to which the Board attaches some credence in paragraphs 94 to 96; and (d) the evidence to which the Board is not willing to attach any credence in paragraph 97 to 103. The discussion ran as long as 10 pages. The Board gave clear reasons for its finding of facts. In the remaining 36 pages of this very long Decision, the Board discussed the risks under the four applicable grounds. It gave full reasons for its assessment and why the Applicant was not entitled to protection under any of these grounds. This complaint is a bare assertion which is wholly unjustified.
(4) The Decision is a template decision
30. The Applicant complained that the Director did not properly address the issues in his case but just came up with an assessment on more or less a template basis. The Court assumed that the complaint was also directed at the Board’s Decision. The Notice may have a similar format as notices issued in respect of other claimants. The decisions of different adjudicators vary as a matter of personal style. There may be some standardisation in the notices prepared by different immigration officers and decisions by the different adjudicators. Such standardisation may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out. No serious complaint could be made of such standardisation. The real issue is whether all the issues raised by the appeal have been identified and dealt with. Having read the Decision, the Court was satisfied that the Board had correctly identified the issues raised by the appeal and properly dealt with them. It can hardly be argued that this 57-page Decision is anything other than a tailor-made one to meet the issues raised in the appeal. There is absolutely no substance in this complaint.
(5) Erroneous finding on availability of state protection
31. The Board discussed availability of state protection in paragraphs 123 to 126 which covered nine pages in the Decision. It referred to COI supportive of the Applicant’s criticism of partiality and inaction of the police and COI against the Applicant showing reforms in improving police effectiveness and accountability; the government’s anti-corruption measures; and availability of redress against police abuses, etc. The COI referred by the Board are all from credible and authoritative source, such as the United Kingdom Home Office, Austrian Centre for Country of Origin & Asylum Research and Documentation, European Asylum Support Office, Transparency International, National Accountability Bureau, National Police Bureau, National Assembly of Pakistan, Federal Ombudsman of Pakistan, the Punjab Police, The Express Tribune, Pakistan Trade & Entrepreneurship Development Organisation and Dunya TV News.
32. The Applicant argued that he had previous experience with the police and learned that the police did not take action against the ruling party due to political pressure. The weight to be given to different COI or parts of a piece of COI is basically a finding of fact exclusively within the arena of the Board. On balancing the COI, the Board found state protection of an adequate standard is available. This is a finding of fact which the Board was entitled to make.
(6) Rejecting the Applicant’s evidence about his fears; and (7) Failing to find the Applicant’s life is still in danger
33. The Applicant said he had given detailed accounts of the different physical assaults he had experienced. He submitted that the Board’s rejecting his evidence about his fears and finding that his life is not in danger is illogical, unreasonable and unfair.
34. The Board accepted the Applicant’s evidence about the two assaults and his evidence about the injury he suffered. However, the threshold of severity for torture is extremely high. On his evidence, the Board was not satisfied that the harm he suffered reached the minimum level of severity. Another important underlying reason for the Board’s finding is that the Applicant is not a member of PLM(Q), his assailants were not from PPP and the assaults were not politically related.
35. The Applicant complained that these findings are illogical, unreasonable and unfair. In paragraph 32 of his supporting affirmation, he quoted paragraph 27 of the Board’s Decision in which the Board said that the Applicant’s evidence was exaggerated and untrue and referred to the Applicant’s evidence that the threat was made through his father. No such evidence had been presented by the Applicant. He had never mentioned anything about his father. Paragraph 27 consists of two sentences that the Applicant was told that Hong Kong is the best place in the world and so he came to Hong Kong. This ground is a “template ground” in the Applicant’s own word.
36. The Applicant’s complaint is only based on his subjective feeling about the outcome of his appeal. It is far from showing that the Board’s finding was the result of error of law or procedural unfairness or irrationality. In effect, these ground amounted to an appeal against the finding of fact by the Board dressed up as an application for judicial review. It is not a proper ground for application for leave to apply for judicial review.
Conclusion
37. Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm arising from the two assaults on him by members of PPP. The Board accepted his evidence about the assaults but found they were not politically motivated and the harm did not reach the minimum level of severity. It also found state protection available to prevent or minimise the risk. The Board had carefully weighed the evidence and assessed his credibility. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.
38. The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There were no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused.
Dated 27th day of April 2022.
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( Allen LEE )
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 27/4/2022
Abbas Muhammad
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 27/4/2022
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1st Putative Respondent’s ref. no.:
USM 11208/18/4/218/P2178
Director of Immigration
2nd Putative Respondent’s ref. no.: QA TC 825/18 (formerly RBCZ 13484/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] s37ZR of the Immigration Ordinance, Cap. 115
[2] [2018] HKCA 549
[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at [14(1)]
[8] cacv 2/2018, (unreported) 23 March 2018
[9] [2018] HKCA 14
[10] [2018] HKCA 15
[11] [2018] HKCA 17
[12] [2018] HKCA 37
[13] (2004) 7 HKCFAR 187
[14] HCAL 51 of 2007
[15] CACV 78/2018
[16] HCAL 102/2012
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