ZAID IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL648/2017

[2018] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 648 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 Pakistan national.  He is now aged 38 (DOB: 2 May 1979).  He entered Hong Kong illegally in November 2013 and subsequently sought non‑refoulement protection.  He claimed the Pakistan police wrongly thought he was associated with the Taliban.  On the other hand, the Taliban mistakenly considered he had betrayed his acquaintance Hakeemullah, leading to the latter being shot dead by the police.  The Taliban threatened to kill the Applicant for revenge.  The Applicant thus fled his homeland for safety.

2.  In the ensuing two‑tier screening process (“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 on all 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].

3.  On 20 September 2017, the Applicant applied for judicial review.

Chronology of events

4.  Things happened in this order: –

2013-9-11	The Applicant left Pakistan.
2013-9-12	The Applicant arrived in China.
2013-11-15	The Applicant sneaked into Hong Kong.
2013-11-27	The Applicant was arrested in Hong Kong.
2013-12-1	The Applicant filed a non-refoulement claim.
2016-1-27	The Director held screening interview with the Applicant.
2016-3-29	The Director refused the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).  [“the Director’s decision”]
2016-4-8	The Applicant appealed to the Board.
2017-1-9	The Director invited the Applicant to submit additional facts for the consideration of a fourth applicable ground: life risk (or BOR2 risk).
2017-1-23	The Applicant failed to submit additional facts by deadline or thereafter.
2017-1-25	The Director refused the Applicant’s claim on the fourth applicable ground: life risk (or BOR2 risk). (“the Director’s further decision”)
2017-2-8	The Applicant appeared before the Board in person for appeal hearing.
2017-8-22	The Board dismissed the Applicant’s appeal on all the four applicable grounds. (“the Board’s decision”)
2017-9-20	The Applicant applied for leave for judicial review.

Respondent/Interested party

5.  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.

6.  On 20 September 2017, the Applicant filed Form 86 (the Notice of application for leave to apply for judicial review) [Folio 1].  In support of his application, he submitted a one-page affirmation also dated 20 September 2017 [Folio 2] and Exhibit “ABC” consisting of the Board’s decision and a 15-page statement of the Applicant’s [Exhibit ABC, pages 32-46].  The statement was a compilation of disjoint excerpts/statements/information/Bill of Rights provisions in repetition.  It is convenient to sum it up as the Applicant’s yearning for justice and fair assessment of his non-refoulement claim.  There is no need to refer to any specific content of the statement.

7.  In Form 86, the Applicant listed the Board as the sole proposed respondent.  However, on page 46 of his Exhibit “ABC”, the Applicant wrote “IS ALL ABOUT LAW IN HONG KONG BUT I TREAD FORM IMMIGRATION OFFICER LIKE DISRESPECT AND DISCRIMINATION ME”.

8.  Though his writing was not grammatical, the Applicant clearly said the Director had treated him unfairly in the screening process.

9.  I take it that the Applicant wanted to sue the Director as well as the Board for judicial review. Thus, both are named as respondents in the current application.

10.  By the time the Applicant filed his application for judicial review on 20 September 2017, the Director’s decisions (rendered respectively on 29 March 2016 and 25 January 2017) were already more than three months old.

11.  Order 53, rule 4 of the Rules of the High Court states:

An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period with within which the application shall be made.

And Section 21K(6) provides as follows:

(6) Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

12.  In the current application, the Applicant has not applied for extension of time to seek judicial review against the Director. Nor has he provided any good reason that would enable him to do so. Thus he cannot proceed his application against the Director out of time.

No request of hearing

13.  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.

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

Director of Immigration (the Director)

15.  In the Director’s decision, the immigration officer found there were discrepancies in the Applicant’s story.  She considered the Applicant was not in genuine fear of being killed.  The risk of his being harmed by the Taliban or the Pakistan police was low.  In any event, the officer was satisfied there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.  

16.  On 29 March 2016, the officer rejected the Applicant’s claim on these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).

17.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of a fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 23 January 2017 or thereafter.

18.  In the Director’s further decision, the immigration officer considered that the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real risk.

19.  On 25 January 2017, the officer refused the Applicant’s non-refoulement claim on the fourth ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

20.  In his report, the Adjudicator set out the facts and the law clearly.  He was alive to the issues of the Applicant’s case.  He found the Applicant not credible; there were no risks as the Applicant claimed, either from the Pakistan police or the Taliban. The Adjudicator also found that reasonable internal relocation was available to the Applicant.

21.  The Adjudicator did not specifically discuss state protection. That would not be necessary as he did not accept the Applicant was under any risk he claimed.

22.  On 22 August 2017, the Adjudicator refused the Applicant’s non‑refoulement claim on all the four applicable grounds.

Grounds for judicial review

23.  The Applicant has these complaints:

(a) There was no reasonable basis for the Adjudicator to find him incredible.

(b) The Adjudicator failed to consider extended state acquiescence.

(c) The Adjudicator failed to consider Country-of-Origin Information (“COI”) fully.

(d) The decision-maker was a different person from the interviewing officer.

(e) There was no proper basis for the decision-maker’s consideration of internal relocation.

Discussion

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

25.  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]

Ground (d)

26.  The Adjudicator Mr. Ronald CHEUNG interviewed the Applicant on 8 February 2017 during the Board hearing.  The same Adjudicator rendered the appeal decision on 22 August 2017. 

27.  The immigration officer who rendered the Director’s decision on 29 March 2016 was the same officer interviewing the Applicant on 27 January 2016. She was Ms LEE Yuen Yee.

28.  The immigration officer who rendered the Director’s further decision on 25 January 2017 was named CHOI Fei-yin. This officer decided the Applicant’s claim only on the fourth applicable ground (BOR2 risk) after the Applicant had failed to submit additional facts for consideration. The officer did not have an interview with the Applicant but decided on the BOR2 issue on all the information before him. It was proper for the officer to do so as the Applicant had not submitted additional facts in respect of the fourth applicable ground. The officer was entitled to rely on all the information already before the Director to come to his decision. Ground (d) fails.

Ground (a)

29.  The Adjudicator considered the Applicant’s case in depth.  He noticed there were a number of inconsistencies or implausible allegations his evidence.  He found the Applicant’s claim was not genuine and rejected it in relation to all the four applicable grounds.  The Adjudicator had proper basis for his findings and conclusions, which were not Wednesbury unreasonable.  The same can be said of the Director’s decisions. Ground (a) fails.

Ground (e)

30.  Despite having rejected the Applicant’s story, the Adjudicator went on to discuss the issue of internal relocation (assuming there was any claimed risk).  He referred to available COI and came to the conclusion that reasonable internal relocation was available to the Applicant.  The Adjudicator’s conclusion was based on apparently reliable information. Again, the same can be said of the Director’s decisions. The Applicant failed to identify what was incorrect in the information or the conclusions.  Ground (e) fails.

Ground (c)

31.  This ground also lacked specifics.  The Applicant failed to point out what COI could assist his claim and how.  There is no substance in Ground (c), which must fail.

Ground (b)

32.  The Adjudicator was conversant with the law relating to state acquiescence.  Though he did not devote time to discuss that, it is apparent from his findings against the Applicant that there was no state acquiescence. In fact, there were no risks as the Applicant claimed.  Ground (b) also fails.

Conclusion

33.  In my judgement, both the Director and the Adjudicator had proper basis for their individual findings and conclusions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Director or the Adjudicator. Each 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 reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/ conclusions/ decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

34.  The Applicant's complaint is not reasonably arguable either against the Director or the Board. He has no reasonable 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.