MUDASSAR v. SIN MING-HEI, ESQ., AND ANOTHER

HCAL 21/2018

[2018] HKCFI 2055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 21 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of Pakistan who entered Hong Kong illegally on 7 May 2013 and was arrested by police on 28 June 2013. After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain members of rival political party Pakistan Muslim League (N) (“PML(N)”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Rawalpindi, Pakistan where his parents and one of his siblings still live.  In 2011 he started working as a driver for ML who was the administrator of the political party of People’s Party of Punjab (“PPP”), and as all of his family members supported PPP, he also became a supporter and regularly attended their meetings and rallies.

3.  One day in 2013 he was approached by HJ, a member of rival party PML(N), with an offer to work as his driver at a much higher salary in the hope that he and his family would be prepared to consider leaving PPP to join his party, but when his offer was declined by the applicant, HJ became angry and threatened to kill him.

4.  Two weeks later one night while the applicant was driving ML’s car on an open road he heard two gun shots which hit his car, and saw four men who then drove away.  Although it was dark and he was unable to see clearly any of those men, he believed that they were sent by HJ to kill him.  He therefore reported the matter to ML who advised him not to involve the police and instead drove him to Peshawar where he took shelter at one of his friend’s place for several weeks, but when he heard that those men had come to Peshawar looking for him, he felt it was no longer safe to remain in Pakistan, and with ML’s help he departed on 3 May 2013 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 11 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director found that the absence of ill-treatment in the past indicative of small future risk of harm to the applicant upon his return to Pakistan, that it was his speculation that those men were sent by HJ to kill him, that the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other areas away from his home district such as Lahore where it would be difficult if not impossible for HJ and his men to locate him.     

7.  By a Notice of Further Decision dated 20 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 20 May 2016, and for which he attended an oral hearing on 21 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant’s evidence about the threats from HJ and the shooting incident unreliable and his intention of seeking protection in Hong Kong suspicious for the detailed reasons and analysis set out in paragraphs 32 – 44, and therefore rejected his claim on all applicable grounds.

10.  On 4 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

11.  The applicant was then some three weeks late with the filing of his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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 within which the application shall be made.

12.  In his same supporting affirmation the applicant claimed not to have received the Board’s decision until sometime in January 2018 which caused the slight delay in the filing of his Form 86, and at the hearing he further offered that it might be the result of his recent change of address.

13.  I note from his file that since his arrival in Hong Kong, he had changed his address on not less than three occasions, with his last one made sometime in between the Director’s Further Decision in March 2017 and his Form 86 in January 2018, for which I am unable to exclude the possibility that he may indeed not be aware of the Board’s decision until January 2018 as alleged, and given that the delay of three weeks in the circumstances may not be said to be unreasonably excessive, I allow that time for his application be extended accordingly, and proceed to consider his proposed grounds for seeking relief.

14.  They are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15.  The only other complaint which the applicant appeared to have made with any elaboration was over the hearing bundle being given to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

16.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had earlier already been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal hearing before the Board he was assisted by an interpreter but he never raised any issue with the hearing bundle or requested the adjudicator for further time to enable him to properly prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

17.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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