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HCAL305/2018
[2019] HKCFI 1975
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 305 of 2018
BETWEEN
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Asif Mehmood |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Adjudicator of Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 39 (DOB: 19 November 1979).
2. The Applicant claimed he would be harmed or killed by several jihadi groups in his country.
3. The Applicant had made friends with some Christian colleagues since 2000. In June 2000, he started to face problems from the fundamentalist Muslims. The Applicant was first asked to join a jihadi group called Jaish-e-Mohammed (“JEM”). Later, another group called Sipah-e-Sahaba (“SSP”) asked him to join them. The Applicant did not follow their instruction. He was assaulted. The SSP people abducted the Applicant to a fighter-training camp in March/April 2001. He managed to escape after a fortnight.
4. The Applicant was later threatened and assaulted by his enemies. In December 2001, he was abducted by the SSP people again to a training camp. He was maltreated. After three weeks, the SSP people abandoned him for unknown reasons. The Applicant went home. Later, he went to live with his aunt till mid-2002. Then he returned home and led a normal life for some time.
5. One day in 2002, the Applicant came across some people from Tehrik-i-Taliban Pakistan (“TTP”). Those people wanted him to join their holy war. The Applicant was made to follow them to a training camp to learn how to use weapons, bombs and suicide jackets. He had stayed in the camp for two months before he succeeded in escaping.
6. The Applicant went home and resumed his job as factory worker between February and December 2003. However, he encountered the TTP people again. He was scared so he left home to stay with a friend till February 2004. He later went to work in another place in Pakistan till mid-2005. The Applicant heard from his friends that the different jihadi groups were looking for him. He was afraid. He went overseas to work in Oman for a year.
7. The Applicant returned to Pakistan in mid-2006. He resumed his old job but encountered the TTP people again. They opened fire at him. The Applicant managed to escape. He left home to live with his aunt and finally left Pakistan for China on 4 July 2007. On 20 July 2007, he sneaked into Hong Kong.
8. On 17 March 2008, the Applicant was arrested by the police. He raised a torture claim on 27 April 2010.
9. On 28 August 2014, the Director rejected the Applicant’s claim with respect to these three applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] [“the Director's 2014 decision”].
10. On 18 September 2014, the Applicant filed a late appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) against the Director's 2014 decision.
11. On 7 October 2014, the Board dismissed the Applicant's late appeal against the Director's 2014 decision. [“the Board's 2014 decision”]
12. On 12 March 2015, the Applicant applied for leave for judicial review of the Board's 2014 decision [“1st Judicial Review” - HCAL 37/2015]. Deputy High Court Judge Wilson Chan, as he then was [‘the Judge’] granted leave to the Applicant on 8 May 2015.
13. On 20 June 2016, the Applicant appeared before the Judge for hearing proper of the 1st Judicial Review. He was represented by counsel.
14. On 17 August 2016, the Judge dismissed the Applicant's application for judicial review of the Board's 2014 decision.
15. On 15 November 2016, the Director rejected the Applicant’s claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4]. [“the Director's 2016 decision”]
16. The Applicant appealed to the Board against the Director's 2016 decision. On 31 January 2018, he appeared before Adjudicator in person for appeal.
17. On 9 February 2018, the Adjudicator rejected the Applicant’s appeal against the Director's 2016 decision. [“the Board's 2018 decision”]
18. On 27 February 2018, the Applicant applied for leave for judicial review of the Board's 2018 decision. [“2nd Judicial Review”]
Respondents
19. 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.
20. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
21. 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 decision. I shall only deal with his application in relation to the Board's 2018 decision. [The Board's 2014 decision had been dealt with by Deputy High Court Judge Wilson Chan in HCAL 37/2015.]
The Director's 2014 decision
22. On 28 August 2014, the Director did not accept the Applicant faced any torture risk, persecution risk and BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to those three applicable grounds.
The Board's 2014 decision
23. The Director’s 2014 decision on torture risk, persecution risk, and BOR3 risk was issued on 28 August 2014. The Applicant appealed to the Board on 18 September 2014. It was seven days after the 14-day deadline.
24. Since it was a late appeal, the Adjudicator did not hold any hearing. He considered the Applicant’s appeal on paper.
25. The Adjudicator found the Applicant had no reason for the delay. He also considered the merits of the Applicant’s case. He found the Applicant’s claim incredible. Furthermore, he considered internal relocation was viable in the Applicant’s case in any event.
26. The Adjudicator did not consider there was any basis to grant the Applicant extension of time to file his late appeal. On 7 October 2014, the Adjudicator dismissed the Applicant’s appeal against the Director's 2014 decision.
1st Judicial Review
27. On 12 March 2015, the Applicant sought leave for judicial review of the Adjudicator’s 2014 decision. The case number was HCAL 37/2015. The Judge granted leave to the Applicant on paper.
28. In the hearing proper on 20 June 2016, the Applicant was represented by counsel assigned by the Legal Aid Department. Counsel argued that the Adjudicator’s refusal to grant the Applicant extension of time to file his late appeal was unreasonable. She also complained the Adjudicator should not consider the merits of the Applicant's case with respect to torture risk, persecution risk and BOR3 risk without hearing the Applicant.
29. The Judge rejected counsel’s arguments and dismissed the Applicant's application for judicial review.
30. The Applicant said he tried to appeal against the Judge’s decision in HCAL 37/2015 but gave up later.
The Director's 2016 decision
31. On 20 September 2016, the Director invited the Applicant to submit additional facts for the consideration of the last applicable ground: BOR2 risk. The Applicant failed to do so.
32. The Director did not accept there was any BOR2 risk in the Applicant's case. On 15 November 2016, the Director rejected the Applicant’s claim with respect to that last applicable ground. [“the Director's 2016 decision”]
The Board's 2018 decision
33. On 25 November 2016, the Applicant appealed to the Board against the Director's 2016 decision.
34. On 31 January 2018, the Applicant appeared before the Board in person for appeal.
35. On 9 February 2018, the Adjudicator rejected the Applicant’s appeal against the Director's 2016 decision. [“the Board's 2018 decision”]
2nd Judicial Review
36. On 27 February 2018, the Applicant applied for leave for judicial review of the Board's 2018 decision [“2nd Judicial Review” – the current application].
Grounds of 2nd Judicial Review
37. The Applicant complained against the Director and the Adjudicator. As said in para 21 above, I shall only deal with his complaints in relation to the Adjudicator's decision (2018). [The Adjudicator’s 2014 decision had been dealt with in HCAL 37/2015.]
38. The Applicant said the Adjudicator’s decision on BOR2 risk was not reasonable or fair. He said he would face extra-judicial killings in Pakistan if he was sent back there. The jihadi groups would kill him. The Applicant complained the Adjudicator did not give him sufficient time and chance to arrange evidence for the appeal hearing.
Court hearing of 2nd Judicial Review
39. The hearing took place on 14 and 21 September 2018. The Applicant was in person. An Urdu interpreter provided service in court.
40. On 14 September 2018, the Applicant wanted to add the Board's 2014 decision to the current application. Upon probing by the court, he said he had previously applied for leave for judicial review.
41. The matter was adjourned for the Applicant to bring the papers relating to his previous judicial review application.
42. On 21 September 2018, the Applicant brought with him the papers of HCAL 37/2015. The applicant there was ‘ASM’. The Applicant said it was him. The details of that case corresponded to the Applicant's situation. The Judge granted him leave on paper but finally rejected his application after hearing on 20 June 2016. The Applicant told this court that he tried to appeal against the Judge’s decision in HCAL 37/2015 but gave up later.
43. The current application (2nd Judicial Review) is only concerned with the Board's 2018 decision on BOR2 risk. The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents.
44. The Applicant also confirmed he had submitted all the proof he had in the screening process.
Discussion
45. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
46. 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]
47. The Applicant complained the Adjudicator did not give him sufficient time and chance to arrange evidence for the appeal hearing. He failed to give specifics. In court, the Applicant confirmed he had submitted in the screening process all the proof he had.
48. The Applicant said the Adjudicator’s decision (2018) was not reasonable or fair. His complaint was vague. He merely maintained he faced life risk (BOR2 risk) and would be killed by the jihadi groups.
49. The Adjudicator noted the Applicant had added a new allegation that he was gang-raped in Pakistan. However, he could not provide details. The Applicant explained to the Adjudicator that he had withheld this fact from the Director and only disclosed it in his recent Notice of Appeal because he felt embarrassed. The Adjudicator did not accept such explanation. He did not believe the Applicant's claim of BOR2 risk.
50. The screening process in the Applicant's case involved different stages spanning through years. The Applicant had every opportunity to state in time his predicament in Pakistan. Having been gang-raped no doubt would be an important feature of his claim. Yet, the Applicant did not mention it until he appealed in November 2016 against the Director's 2016 decision on BOR2 risk. The Adjudicator was entitled to find the Applicant incredible and thus rejected his claim.
51. I have reviewed the Adjudicator’s 2018 decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
52. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review of the Board's 2018 decision on BOR2 risk. [The Board’s 2014 decision on torture risk, persecution risk and BOR3 risk had already been dealt with in HCAL 37/2015.]
Dated the 9th day of August 2019
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(Henry Ng)
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 the Applicant’s 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 9/8/2019
Asif Mehmood
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 9/8/2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 161/14 & RBCZ 9000349/16 (formerly RBCZ 658/10)
Adjudicator of Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
BOR 6/16/11/6/P1 & USM 242/14/9/69/P71
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).
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