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HCAL639/2018
[2019] HKCFI 2057
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 639 of 2018
BETWEEN
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Fahad Shah |
Applicant |
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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 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 30 (DOB: 25 March 1989).
2. The Applicant claimed he would be harmed or killed by members of the Taliban. He supported the Awami National Party (“ANP”), which were strongly against the Taliban. His father and uncles also supported ANP.
3. The Applicant claimed he became a paid worker of ANP in 2006. He assisted in the promotion and execution of party events.
4. On 24 March 2013, some Taliban members attacked the Applicant’s home. They opened fire. The Applicant's family had to flee for their life. They became separated. The Applicant learnt that two uncles of his were injured. The matter was reported to the police.
5. Two days later, the Applicant left for Karachi and stayed there until he finally left Pakistan for China on 4 April 2013.
6. On 19 April 2013, the Applicant sneaked into Hong Kong. He was arrested by the police on 14 May 2013.
7. The Applicant said he learnt the Taliban further attacked his family in Pakistan respectively in April 2014 and June 2015. His brother Assad Ali was seriously injured on both occasions. The attackers also caused great damage to the Applicant’s home.
8. The Applicant believed the Pakistan police or government could not help him because the Taliban were strong and had a huge network in the country. He did not feel safe by relocating himself to other parts of the country.
9. In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively rejected 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
10. On 13 April 2018, the Applicant applied for leave for judicial review.
Respondents
11. 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 case on a rehearing basis.
12. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
13. 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 deal with his application only in relation to the Board's decision.
The Director's decision
14. In his decision dated 13 February 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or 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 claim with respect to all the four applicable grounds.
The Board’s decision
15. The Applicant appealed to the Board. The Adjudicator interviewed him on 9 November 2017.
16. The Adjudicator accepted the Applicant's account of events. However, he considered the situation in Pakistan had changed now. The Taliban had been forced underground. There was no evidence that the Applicant and his family members were further targeted by the Taliban after June 2015. The Applicant agreed with the Adjudicator that the situation had changed but he still claimed he was at risk.
17. The Adjudicator found the Pakistan government was fighting the Taliban and providing protection to the citizens. There was no evidence of state acquiescence to deny the Applicant of such protection.
18. The Adjudicator considered it was not likely that the Applicant would be at risk in his home area now. It was unlikely the Taliban would go after him elsewhere in the country. The Adjudicator did not accept the Taliban would target the Applicant anymore. In any event, internal relocation was viable in the Applicant's case.
19. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 15 March 2018, he rejected the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
20. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 13 above, I would deal with the current application in relation to the Board's decision only as the Director's decision had gone on appeal to the Board as rehearing.
21. The Applicant complained the Adjudicator did not read to him the appeal bundle apart from those contents which the Adjudicator wanted to discuss in the Board hearing. The Applicant said he could not find out if the contents of the appeal bundle were correct.
22. The Applicant said the country-of-origin information (“COI”) did not reflect the real situation in Pakistan. It was wrong for the Adjudicator to find he was no longer at risk there. The Applicant said that ‘the Taliban’s kill rate has declined’ was not true and corruption was still a huge problem in Pakistan.
Court hearing
23. The hearing took place on 24 August 2018. The Applicant was in person. A Pushto interpreter provided service in court.
24. In court, the Applicant said a lawyer helped him to prepare Form 86 and the affirmation for his application for leave for judicial review. All the grounds were in the documents.
25. The Applicant submitted a bundle of documents which he said were obtained from the internet. He said he had previously submitted them to the Director and the Adjudicator for their consideration. The Applicant said he had submitted all of his case to the Director and the Adjudicator but they did not make proper and fair assessment of his claim.
Discussion
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
28. The Applicant complained the Adjudicator did not read to him the appeal bundle except those parts the Adjudicator wanted to discuss. The Applicant said he could not find out if the contents of the appeal bundle were correct.
29. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim, when he was legally represented. The Applicant's case was not difficult. He was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant failed to prove his suspicion that some contents of the appeal bundle were not correct.
30. The Applicant said the COI considered by the Adjudicator did not reflect the real situation in Pakistan. He claimed the Taliban were still strong and killing people high and low in Pakistan.
31. There was no evidence to support the Applicant's allegation. The bundle of documents he tried to put before this court was repetition of his claim. The Applicant confirmed he had put forth all the proof he had before the Adjudicator. The Adjudicator was the primary decision-maker. He. had balanced consideration of relevant COI. He was entitled to conclude the Taliban were now more subdued and unlikely to pose further risk to the Applicant. The Pakistan government though not perfect was able to provide reasonable state protection to citizens. The Adjudicator’s finding was not Wednesbury unreasonable.
32. I have reviewed the Adjudicator’s 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 was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to 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 prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 22nd 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 22/8/2019
Fahad Shah
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 22/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6314/17/2/313/P1358
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3232/16 (formerly RBCZ 3000698/14)
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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