|
HCAL810/2018
[2019] HKCFI 222
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 810 of 2018
BETWEEN
|
Ghous Niaz |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
|
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 34 (DOB: 12 August 1984).
2. The Applicant claimed he was a professional player in Azad Kashmir. He feared he would be harmed or killed by three cricket players in his team (Abbas, Wajid and Amjad) because they were jealous of him.
3. In mid-2012, Abbas, Wajid and Amjad kidnapped the Applicant. They tortured him and threatened him to leave the cricket team. The Applicant made no promise. He was released after being held for ten days. The kidnappers reminded the Applicant that he would be killed if he did not leave the cricket team.
4. The Applicant was injured. His family sought assistance from the police. However, the police did not take any action. The Applicant thought the police were influenced by the kidnappers. The Applicant said Abbas, Wajid and Amjad came from rich families and had connections with the Pakistan People’s Party (“PPP”).
5. Being in fear, the Applicant relocated himself to another place in Pakistan. However, his enemies found him and continued to threaten him. The Applicant finally left Pakistan for Hong Kong.
6. The Applicant was arrested by the police in Hong Kong for illegal remaining on 15 September 2012. He claimed he entered Hong Kong two days ago on 13 September 2012.
7. The Applicant raised a torture claim[1] on 17 September 2012. It was rejected by the Director of Immigration (“the Director”) on 24 January 2013. The Applicant appealed. His appeal was refused on 11 April 2013. The Applicant then failed to report for recognizance.
8. In late 2013, the Applicant lodged a non-refoulement claim. He was later arrested again on 15 March 2014 for illegal working.
9. In the ensuing two-tier screening process, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
10. On 9 May 2018, the Applicant applied for leave for judicial review.
Timeline
11. Things happened in this order: –
| 2012-9-13 |
The Applicant sneaked into Hong Kong. |
| 2012-9-15 |
The Applicant was arrested by the police for illegal remaining. |
| 2012-9-17 |
The Applicant raised a torture claim |
| 2013-1-24 |
The Director refused the Applicant’s torture claim. |
| 2013-4-11 |
The Applicant’s appeal on torture claim was refused. |
| Late 2013 |
The Applicant lodged a non-refoulement claim. |
| 2017-9-7 |
The Director refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: (i) persecution risk, (ii) BOR2 risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2018-3-8 |
The Applicant appeared before the Board for appeal. |
| 2018-4-30 |
The Adjudicator refused the Applicant’s appeal with respect to these three applicable grounds: (i) persecution risk, (ii) BOR2 risk and (iii) BOR3 risk. [“the Board's decision”] |
| 2018-5-9 |
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 case on a rehearing basis.
13. 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.
14. 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. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
15. The Applicant's torture claim was rejected by the Director in January 2013. His appeal on torture claim was refused in April 2013.
16. The Applicant raised a non-refoulement claim in late 2013.
17. On 7 September 2017, the Director refused the Applicant's non-refoulement claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. The Director did not accept the Applicant faced any of those risks. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed him on 8 March 2018.
19. The Adjudicator accepted the Applicant’s account of events was credible. However, he did not accept the Applicant’s enemies really wanted to kill him because they could have done that if they so wanted during the 10-day capture. Yet, they did not. While the enemies continued to harass the Applicant, they only did so verbally and did not cause him further harm. The Adjudicator was not satisfied the Applicant had been inflicted with ill-treatment to a minimum level of severity.
20. The Applicant said the local police did not take any action against his enemies. However, he had not sought assistance from other authorities. The Adjudicator found there was no evidence of state acquiescence. It was only the Applicant's speculation that the local police had been influenced by his enemies. The Adjudicator considered the Applicant failed to seek help sufficiently. The Adjudicator had regard of relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
21. The Adjudicator did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 30 April 2018, he refused the Applicant’s appeal with respect to those three applicable grounds.
Grounds for judicial review
22. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in para. 14 above, the Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
23. The Applicant complained he did not have legal representation and language assistance for appeal to the Board.
24. The Applicant complained the appeal bundle was served on him only shortly before the Board hearing. There was a lack of translation/interpretation. He did not understand the documents.
Court hearing
25. The hearing took place on 24 July 2018. The Applicant was in person. An Urdu interpreter provided service in court.
26. The Applicant said a friend help him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in his affirmation. He had nothing to add to those grounds.
27. The Applicant also confirmed that he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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]
30. The Applicant complained there was a lack of legal representation for his appeal to the Board.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
33. The Applicant complained the appeal bundle was served on him only shortly before the Board hearing.
34. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence that the rules had been breached.
35. 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. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
36. The Applicant had not complained to the Adjudicator or asked for adjournment during the Board hearing. He failed to show he really needed more time to prepare for his appeal. On the contrary, it was evident from the Adjudicator’s report that the Applicant had prepared himself for the Board hearing, where he adopted all the information he had submitted and also gave evidence before the Adjudicator.[11]
37. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion 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 and applied the law correctly. He considered the Applicant's claim carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.
Conclusion
38. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated 1st day of February 2019
|
(Alan Ngan)
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 his solicitors must:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 1/2/2019
Ghous Niaz
Applicant’s ref. no:
Nil.
|
|
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 1/2/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8554/17/9/226/P1689
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1856/17 (formerly RBCZ 2001747/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
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).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[11] The Board's decision, para 7.
|