HUSSAIN MUHAMMAD ASIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL720/2017

[2018] HKCFI 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 720 of 2017

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

Following;

	consideration of documents only
	consideration of documents and the Applicant being absent 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 34 (DOB: 19 May 1984).

2.  The Applicant claimed he would be killed by his aunt Rehmat Jan, the aunt’s husband and their three sons because there was a land dispute between both sides.

3.  The Applicant said his grandfather had left a piece of land to his three children: the Applicant’s father, uncle and aunt. After the uncle’s death, the aunt took the uncle’s portion of land. She forced the Applicant’s father to exchange his land with the uncle’s portion. The father refused.

4.  In mid-2013, the father told the Applicant’s brother to fence up the land. The aunt was enraged. The next day, some masked men told the Applicant's brother to remove the fence. The brother refused. He was shot dead by those men. The matter was reported to the police. Although the police knew the killers were hired by the aunt, they would not take action because the aunt was wealthy and affiliated with the ruling party Pakistan Muslim League Party (N) [PML(N)].

5.  In late 2013, the Applicant was shot by some men. He was hit in the leg. The Applicant believed those men were also sent by the aunt because one of the aunt’s sons had warned him that he should accept the land exchange proposal or prepare to die. The Applicant reported the matter to the police but no action was taken. The Applicant wanted mediation but the aunt insisted that the Applicant should either accept her suggestion or prepare to die.

6.  Later, the Applicant was assaulted by the aunt’s family. He was injured. This time, he did not seek police assistance.

7.  On another occasion, some masked men tried to kidnap the Applicant. He managed to escape. He went to the police station. The same officer who had been handling his complaints asked for bribe. The Applicant could not afford to pay.

8.  In early 2014, the Applicant moved to Lahore, then Saddar and then Rawalpindi. Once in a hotel restaurant, someone put poison in his tea. Fortunately, a waiter alerted him. The Applicant believed that had something to do with his uncle’s son, Wajid. The Applicant did not report the matter to the police. He moved to Islamabad and finally left Pakistan in late June 2014 for China. A month later, he came to Hong Kong illegally and subsequently sought non-refoulement protection.

9.  The Applicant did not think the Pakistan police would protect him because they were corrupt. He also thought internal relocation was not viable.

10.  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].

11.  On 6 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

12.  Things happened in this order: –

2014-6-28	The Applicant left Pakistan by air and reached China the next day.
2014-7-31	The Applicant sneaked into Hong Kong illegally by boat.
2014-8-3	The Applicant was arrested by the police for illegal remaining.
2014-8-6	The Applicant raised a non-refoulement claim.
2016-3-23 &30	The Director held screening interview with the Applicant.
2016-4-26	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”]
2017-6-7	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-8-12	The Applicant failed to submit additional facts by the extended deadline and thereafter.
2017-8-17	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-8-18	The Applicant appeared before the Board for appeal.
2017-9-22	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2017-10-6	The Applicant applied for leave for judicial review.

Respondents

13.  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.

14.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director 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 was more than three months old by the time the Applicant filed his current application on 6 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 22 September 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 6 October 2017; the application against the Director's further decision and the Board's decision was made within time.

Director of Immigration (the Director)

17.  In the Director’s decision dated 26 April 2016, the immigration officer found the Applicant’s claim in many places unreliable or short of proof.

18.  Even on the strength of the Applicant’s claim, the officer considered the level of risk of harm against the Applicant by his alleged enemies was low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. The officer did not think the alleged enemies had real intention to severely harm or kill the Applicant.

19.  The officer found the Applicant’s feared situation was not instigated by PML(N) or government officials. There was no reliable evidence to show state acquiescence.

20.  While accepting there were severe deficiencies in the Pakistan police force and the government, the officer considered there had been improvements. Reasonable state protection was still available to the Applicant.

21.  The officer was not satisfied that the alleged enemies would follow the Applicant everywhere in Pakistan. He concluded reasonable internal relocation was viable in the Applicant’s case.

22.  The officer did not accept the Applicant would face a genuine and substantial BOR3 risk or any well-founded persecution risk. He also did not find substantial grounds for believing the Applicant would be subjected to torture upon his return to Pakistan; there was no torture risk.

23.  The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk).

24.  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 do so by the extended deadline of 12 August 2017 or thereafter.

25.  In the Director’s further decision dated 17 August 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2).

26.  The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

27.  In her report, the Adjudicator set out the facts and the law clearly.  She was alive to the issues of the Applicant’s case.  She found there was no concrete evidence to support the Applicant’s claim, which was merely his assertion. She found the Applicant's account of events unbelievable. The Adjudicator found the Applicant failed to establish his alleged risk.

28.  The Adjudicator did not accept the Applicant’s accusation against the Pakistan police. She did not find there was evidence of state instigation or state acquiescence. She was satisfied reasonable state protection and internal relocation alternatives were available to the Applicant in Pakistan.

29.  The Adjudicator found the Applicant failed to prove any risk that warranted non-refoulement protection. On 22 September 2017, she refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

Grounds for judicial review

30.  In his affirmation dated 6 October 2017 [Folio 2], the Applicant had these complaints: –

(a) Lack of legal representation.

(b) Lack of language assistance.

(c) No reasons given by the Director in his further decision dated 17 August 2017.

(d) Lack of fair hearing.

Court hearing

31.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled on 27 April 2018. However, the Applicant was absent. Calls were made to the two telephone numbers he had left on record but those were invalid numbers. The Applicant's current application for leave for judicial review was thus processed on consideration of documents only.

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]

Ground (a): Lack of legal representation

34.  The Applicant complained that he had not been provided with legal assistance with respect to the Director's consideration of BOR2 risk and the appeal to the Board.

35.  The Applicant had legal assistance from the Duty Lawyer Service up to the Director's decision rendered on 26 April 2016.

36.  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.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail.

Ground (b): Lack of language assistance

37.  The Applicant complained he had not been given sufficient interpretation/ translation assistance.

38.  The Applicant’s Form 86 and affirmation were quite well-presented. Even if they were not prepared by the Applicant himself, those documents at least show he could find someone to assist him with interpretation/translation and dealing with documents for his claim. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents.  Ground (b) fails.

Ground (c): No reasons given by the Director in his further decision dated 17 August 2017

39.  The Applicant complained the Director did not give reasons for his further decision on BOR2 risk.

40.  The Director’s further decision on BOR2 risk dated 17 August 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 26 April 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 17 August 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 26 April 2016. Ground (c) fails.

Ground (d): Lack of fair hearing

41.  The Applicant complained again about lack of legal assistance and language assistance, which have already been dealt with in Ground (a) and Ground (b) above.

42.  The Applicant criticised the Director for not attending the appeal hearing before the Board on 18 August 2017.  He deduced that the Director was not concerned about his case. There is no substance in this criticism. I cannot see how the Applicant’s non-refoulement claim was prejudiced by the Director’s being excused from that appeal hearing.

43.  The Applicant also criticised the Director for assuming he chose not to reply to the request for additional facts with respect to the consideration of BOR2 risk.

44.  Apparently, the Applicant had received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. He asked for time and the Director extended the deadline to 12 August 2017. Yet he failed to submit further information/documents by the extended deadline or thereafter.[8] The Applicant's complaint had no basis. Ground (d) fails.

45.  In my judgement, the Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. They 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. There is no substance in the Applicant’s complaints against the Director or 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 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.

Conclusion

46.  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