DAR USMAN ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1121/2017

[2018] HKCFI 1893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1121 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents
	consideration of documents and oral submission by the Applicant in open court

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 32 (DOB: 12 February 1986).

2.  The Applicant claimed he would be harmed or killed by his paternal uncle Misbah Uddin Dar (“Misbah”) because there was a land dispute between Misbah and the Applicant's father. Misbah was a member of the Pakistan Muslim League (Nawaz) [“PML(N)”]. He was influential in the local area.

3.  The Applicant said his grandfather had two pieces of land (A & B). Land A was for the Applicant’s father; Land B was for Misbah. However, in 2007 the Applicant's father found out both Land A and Land B had been registered in Misbah’s name. Misbah refused to transfer Land A to the Applicant's father. The latter made a report to the police but the police took no action. He thus filed an action in court.

4.  In 2008, the Applicant's family pressed Misbah to give back Land A to them. Misbah threatened to kill them. Misbah’s son Saad opened fire and injured the Applicant's leg. The Applicant's father, however, did not report that to the police. He still loved Misbah and did not want Misbah to get into troubles.

5.  The court case dragged on. The Applicant's father feared for the safety of the Applicant and the other son Faizan. He first sent Faizan to Hong Kong in 2008. In 2013, he also sent the Applicant to Hong Kong.

6.  The Applicant left Pakistan for China on 21 November 2013. He was arrested by the police in Hong Kong on 10 December 2013. He claimed he entered Hong Kong from China that day. He lodged a non-refoulement claim a few days later.

7.  The Applicant learnt from his father that the land dispute was still going on.

8.  The Applicant did not have faith in the Pakistan authorities. He did not think he would get state protection. He also thought internal relocation was not viable.

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 (“TCAB/NCPO” or simply “the Board”) respectively refused 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 (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

10.  On 21 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

11.  Things happened in this order: –

2013-11-21	The Applicant left Pakistan for China.
2013-12-10	The Applicant was arrested by the police in Hong Kong. He said he entered Hong Kong from China illegally that day.
2013-12-13	The Applicant raised a non-refoulement claim.
2016-4-13	The Director interviewed the Applicant.
2016-5-30	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”]
2017-5-9	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-5-23	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-6-5	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-6-29	The Applicant appeared before the Board for appeal.
2017-11-22	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-12-21	The Applicant applied for leave for judicial review.

Respondents

12.  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.

13.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. 

14.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

15.  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 within which the application shall be made.[5]

16.  In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 21 December 2017. However, the Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its appeal decision on 22 November 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 21 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

17.  In the Director’s decision dated 30 May 2016, the immigration officer did not make specific findings on the Applicant's credibility. However, even on the Applicant's own account of events the officer considered the level of risk of harm against the Applicant by his alleged enemy was low. He was not satisfied Misbah had real intention to harm or kill the Applicant.

18.  The officer was aware there were reports of police corruption in Pakistan. However, there were ongoing reforms in the country. There was also mechanism in the country to deal with land disputes.

19.  The officer found the Applicant's complained situation was only a private land dispute with no involvement of the state or government officials. He was satisfied that reasonable state protection was available to the Applicant.

20.  The officer did not find PML(N) was involved. There was also no indication Misbah would be able to search for the Applicant all over Pakistan. The officer found internal relocation was viable in the Applicant’s case.

21.  The officer did not find there was any real torture risk, persecution risk, and CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds. 

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

23.  In the Director’s further decision dated 5 June 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

24.  The Adjudicator did not make specific findings on the Applicant's credibility. However, even on the Applicant’s own account of allegations the Adjudicator noted the Applicant had not been inflicted with severe pain or suffering. The feared situation was rather a perception by the Applicant's father, who urged the Applicant to leave Pakistan. The land dispute had gone to court and there was no more threat or violence from Misbah’s side since 2008.

25.  The Adjudicator found there was no evidence that PML(N) or the state of Pakistan was involved.  He did not believe Misbah was able to locate the Applicant all over Pakistan. Internal relocation was available to the Applicant.

26.  The Adjudicator considered the Applicant faced no real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

Grounds of judicial review

27.  In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issues of state acquiescence; failed to appreciate the misconduct of the Pakistan police; failed to appreciate the corruption and incompetence of the administration in Pakistan; failed to consider state instigation and the absence of state protection; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; being unfair; rendered unreasonable decisions.

28.  Regarding the Adjudicator, the Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.

Court hearing

29.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled for 5 June 2018. The Applicant was present. He said he paid a lawyer to prepare Form 86 and the affirmation for his current application of judicial review. The Applicant, however, could not confirm the grounds of his application. The case was adjourned to 8 June 2018 for the Applicant to verify his complaints against the Director and the Board.  On that day, the Applicant said he had not been able to speak to his lawyer. He asked for a week’s time to speak to his lawyer to confirm the grounds of judicial review. The matter was further adjourned.

30.  On 19 June 2018, the Applicant still said his lawyer had not explained to him what he had put down for him in the documents. I then stood the matter down for the Punjabi interpreter to explain the documents to the Applicant. The Applicant understood the contents. He confirmed all the grounds of judicial review were there. He had nothing to add.

31.  The Applicant confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

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

33.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

34.  The Applicant said he had been detained by the Immigration Department and that affected his proving his claim. However, the Director confirmed in his letter dated 21 June 2018 that the Applicant had been released on recognizance since 25 January 2014. There was no evidence he was further detained.

35.  There are other complaints by the Applicant against the Director and the Adjudicator. They lacked specifics.  The Applicant failed to elaborate his complaints in court even though he was so invited.

36.  I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had each 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 they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant's complaints.

Conclusion

37.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic 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