MUHAMMAD ISHTIAQ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1131/2017

[2018] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2017

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

Following;

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

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: 8 February 1980). 

2.  The Applicant claimed that he would be harmed or killed by his cousin Zeyarab Khan (“Khan”) due to a land dispute.

3.  The Applicant said Khan had support of many influential people connected to the Pakistan Muslim League (Nawaz) [“PML(N)”]. Khan disliked him because he had not married Khan sister and also because he supported another political party, the Pakistan Tehreek-e-Insaf (“PTI”).

4.  In 2014, Khan planned to build a house in front of the Applicant's house. The two had dispute which could not be settled by mediation.

5.  One evening, the Applicant was assaulted by some men.  Someone blamed him for starting all the disputes. The Applicant did not report the matter to the police. He thought he had no proof and also he had no money to bribe the police. He believed the police were influenced by PML(N) and would not help him.

6.  A month later, the Applicant was assaulted by Khan and some men again. The Applicant did not report the matter to the police.

7.  The Applicant’s father later filed a land dispute lawsuit against Khan and his family. Some months later, the Applicant met Khan. Khan asked the Applicant to tell his family to withdraw the lawsuit or he would kill the Applicant. The Applicant thought Khan targeted him because he had refused to marry Khan’s sister.

8.  The Applicant’s family did not report the matter to the police but started to arrange for the Applicant to leave Pakistan for his safety.

9.  The Applicant dodged Khan and left Pakistan on 27 July 2015. He came to Hong Kong on 31 July 2015 and surrendered to the police on the same day. He filed a non-refoulement claim on 2 August 2015.

10.  The Applicant said the land dispute was not settled yet. He could not relocate himself to other parts of Pakistan because Khan could find him with the help of PML(N).

11.  In the ensuing two-tier screening process here (“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 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].

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

Chronology of events

13.  Things happened in this order: –

2015-7-27	The Applicant left Pakistan.
2015-7-31	The Applicant arrived in Hong Kong. He surrendered to the police.
2015-8-2	The Applicant filed a non-refoulement claim.
2017-7-13	The Director interviewed the Applicant.
2017-7-24	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director’s decision”]
2017-11-7	The Applicant appeared before the Board for appeal.
2017-12-1	The Board 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

14.  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.

15.  In Form 86, the Applicant listed the Director and the Adjudicator as proposed respondents. 

16.  The Adjudicator did not act in her personal capacity. She 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.

17.  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]

18.  In the present case, the Director's decision dated 24 July 2017 was 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 before the Board rendered its appeal decision on 1 December 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 albeit late on 21 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

19.  In the Director’s decision dated 24 July 2017, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant’s allegations the officer considered the level of risk of harm against the Applicant by his alleged enemies was low. He was not satisfied the alleged enemies had real intention to seriously harm or kill the Applicant.

20.  The officer was aware there were reports of police corruption in Pakistan. However, there were ongoing reforms in the country. There were official channels available for complaint against the misconduct of the police or government officials.  The officer was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.

21.  The officer did not find there was any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).

TCAB/NCPO (the Board)

22.  The Adjudicator found the Applicant’s assertions lacking in particulars. She did not consider the Applicant’s evidence credible or reliable.

23.  On the other hand, the Adjudicator considered reasonable state protection was still available to the Applicant despite there were ineffectiveness and corruption in the Pakistan police. Reasonable internal relocation was also viable.

24.  The Adjudicator did not find the Applicant faced any real torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). She refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

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

26.  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

27.  In Form 86, the Applicant requested a hearing.  The hearing took place on 31 May 2018. The Applicant was in person. An Urdu interpreter provided service in court.

28.  The Applicant said he knew little English. A lawyer helped him to prepare Form 86 and the affirmation. He had nothing to add to the stated grounds of application.

29.  In his complaint, the Applicant mentioned he had been in custody which limited his ability to adduce proof for his claim. He said in court that he was imprisoned between August 2016 and June 2017. Then he was remanded in the immigration detention centre until 8 January 2018. He said he therefore could not get hold of some documents from Pakistan to prove the alleged land dispute. He said those documents were generated in late 2014. They were with his brother and father when he left Pakistan in July 2015.

Discussion

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

31.  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]

32.  The Applicant complained he had limitation in adducing proof. He mentioned he had been in custody.

33.  The Adjudicator was aware of the Applicant's situation. [7]

34.  In court, the Applicant said the documents which he would like to get hold of for submission was related to the land dispute. Those documents were already with his brother and father when he left Pakistan in July 2015.

35.  The Applicant's family made arrangements for the Applicant to leave Pakistan. He did not leave in a hurry. If the Applicant had wanted to use the alleged documents to support his non-refoulement claim, he would have brought a copy of them with him. Alternatively, the Applicant could have easily asked his family to send those documents to him in the almost one year before he was caught and imprisoned for illegal employment in August 2016. I am not satisfied the Applicant had really wanted to rely on the alleged documents or that he had been prejudiced in proving his claim to the Director or the Adjudicator.

36.  The Applicant's other complaints were vague. He could not elaborate or be specific about them even though he was invited to do so in court.

37.  I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. There was no evidence that the Director and the Adjudicator were prejudiced and cherry-picked information. They had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director and the Adjudicator, who 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 the law. They considered the Applicant’s case carefully and applied the law correctly. 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.

Conclusion

38.  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