ZAMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL734/2017

[2019] HKCFI 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 734 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 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 40 (DOB: 1 January 1979). 

2.  The Applicant claimed he would be harmed or killed by his uncles Shafi and Khan because of a land dispute. The two uncles were associated with the ruling party Pakistan Muslim League (N) [“PML(N)”]. Khan was a chairman at the union council level while Shafi was an ordinary member rendering support to the Administrator. Both had good relationship with the police and would bribe the police.

3.  The Applicant and his family were supporters of the Pakistan People’s Party ["PPP"].

4.  The Applicant said his father and two uncles (Shafi and Khan) had each inherited some land from the Applicant's grandfather. The Applicant's father died when the Applicant was aged 10. The two uncles started to use the land belonging to the Applicant's late father without permission from the Applicant's family.

5.  In 2000 when the Applicant was aged 21, he and his family wanted do take back the land usurped by the two uncles. The latter refused to give up the land despite they were shown the land registration document.

6.  The Applicant's family complained to the police but the police said it was only a domestic dispute.

7.  The Applicant's family took the matter to court but the Applicant did not know the progress of the proceedings.

8.  In 2002, the Applicant's family were attacked by some armed men. They were injured. The assailants warned them not to claim the land from Shafi and Khan or to complain to the police, otherwise they would be killed.

9.  Nevertheless, the Applicant's family made a report to the police. The police said they would pursue the matter. Yet, they did nothing.

10.  The Applicant's family sought assistance from a member of the Provincial Council called Hanif. Hanif belonged to PML(N). He ignored the land registration documents and told the Applicant's family to deal with Shafi and Khan directly.

11.  The Applicant's own party PPP was unable to help.

12.  Later, the Applicant and his brother Imran were arrested. Khan’s brother-in-law falsely accused them of stealing goats. The Applicant and his brother were assaulted and detained for two days before release.

13.  In 2004, the Applicant, Imran and a few male relatives were falsely accused by their enemies of indecent assault. They were arrested, detained and assaulted. The Applicant was later tried in court. He was acquitted in the end.

14.  Later, some people attacked the Applicant and his family. They assailants also made false accusation against them. The Applicant and his brother were then arrested. They were beaten up in the police station. The Applicant was released after being detained for 17 days. His family members had been released earlier.

15.  A few days later, the police came again and arrested some of the Applicant's family. The police said they had abducted Iftikhar Ali, who was the Applicant's maternal cousin. They were later released on bail.

16.  Two days later, some people attacked the Applicant in the street. They warned the Applicant and his family should leave the place or they would be killed. They also warned the Applicant not to claim the land, which was the cause of all troubles. The Applicant refused. Some then fired shots into the air to threaten him.

17.  Another two days later, some policemen came. This time, they said the Applicant's family had threatened the Applicant's uncles and cousins. The Applicant and his brother were taken back to the police station. They were again assaulted. The police warned them not to get involved anymore in the land dispute.

18.  The Applicant and his brother were later bailed out by a friend. The Applicant then fled to another place called Pull Munda and stayed there for three months. When he saw his attackers again, he moved further to a place called Dina. Two months later, the Applicant was told there was sight of his enemies so he moved further. A year later, he saw some of his enemies again. He moved to live elsewhere but still did not feel safe. He finally left Pakistan for China in July 2007.

19.  In Hong Kong, the Applicant was told by his family through a friend that he should not return home as his enemies were still looking for him.

20.  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: risk of torture[1], 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].

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

Timeline

22.  Things happened in this order: –

2007-7-23	The Applicant left Pakistan for China.
2007-7-25	The Applicant entered Hong Kong from China illegally.
2007-7-30	The was arrested by the police for illegal remaining.
2008-6-27	The Applicant lodged a torture claim.
2016-1-22	The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision”]
2016-11-9	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.
2016-11-23	The Applicant failed to submit additional facts by the deadline or thereafter.
2016-11-28	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”]
2017-2-16	The Applicant appeared before the Board for appeal.
2017-3-1	The Applicant appeared before the Board again.
2017-9-1	The Adjudicator refused the 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.

Respondent/Interested party

23.  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.

24.  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]

25.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent. He did not name any interested party. However, in a case of this nature the Director must be an interested party. Thus, the Board is the putative respondent and the Director is the putative interested party.

The Director's decision

26.  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 refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

27.  The Applicant appealed to the Board. The Adjudicator interviewed him on 16 February 2017 and 1 March 2017. The Applicant was represented by a duty lawyer on both occasions.

28.  The Adjudicator found there were inconsistent and unsatisfactory features in the Applicant's allegations. He found the Applicant's evidence unreliable. The Applicant's description of the political situation in Pakistan was confusing and contradicted by reliable country-of-origin information ("COI"). The Adjudicator found the Applicant just tried to introduce a political dimension to boost his weak non-refoulement claim. The Adjudicator accepted there were protracted disputes involving the Applicant's family and their relatives. The documents produced by the Applicant, however, showed the Pakistan authorities had intervened and handled the matter appropriately. The Adjudicator was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.  The Adjudicator further found that if there was really any risk, it was confined to the area where the Applicant lived. Internal relocation was viable in the Applicant's case in any event.

29.  On 1 September 2017, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

30.  In his affirmation, the Applicant only stated he still had problem in Pakistan involving PML(N) and a land dispute. He said he could not go back and asked to be given more time.

Court hearing

31.  The hearing took place on 3 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

32.  The Applicant provided no grounds in his documents for his application for leave for judicial review. In court, he was asked to state his grounds of application. The Applicant only said the Director and the Adjudicator were both wrong in their decision. He could not give particulars.

33.  The Applicant lastly complained there was a lack of legal representation.

Discussion

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

35.  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]

36.  The Applicant complained there was a lack of legal representation.

37.  The Applicant was represented by the Duty Lawyer Service (“DLS”) during the Director's decision stage but not during the Director's further decision stage. However, he was again represented by DLS for appeal to the Board. He was accompanied by a duty lawyer on 16 February 2017 and 1 March 2017 before the Adjudicator.

38.  It was apparent from the Adjudicator’s report that the duty lawyer argued diligently and competently for the Applicant during the Board hearing. The Applicant could hardly complain he had not received sufficient legal representation.

39.  The Applicant said the Adjudicator and the Director were wrong to reject his claim. He only named the Board as respondent. However, he could not give any particulars of his complaint against the Adjudicator.

40.  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. He considered the Applicant’s claim 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

41.  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.

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