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HCAL819/2018
[2019] HKCFI 2058
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 819 of 2018
BETWEEN
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Ijaz Ahsan |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Adjudicator of the Non-refoulement Claims Petition Office |
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 23 (DOB: 5 September 1995).
2. The Applicant claimed he would be killed by the Shia Muslims in his country.
3. The Applicant said he was a Sunni Muslim. There were conflicts between the Shias and the Sunnis. The Shias had killed many Sunnis.
4. In 2014, three Shias approached the Applicant. They asked him to convert to Shia. The Applicant refused.
5. Later, the Applicant was threatened by several Shias. They said they would not spare the Applicant if he did not listen to them. The Applicant still refused to convert to Shia. The men assaulted him. Some passers-by intervened. The assailants then left.
6. The Applicant dared not report the matter to the police. He thought the police would not help him as the chairman in that area was a Shia and had close connection with the police. That chairman belonged to the ruling party, the Pakistan Muslim League (Nawaz) [“PML(N)”], while the Applicant belonged to another political party called Pakistan Tehreek-e-Insaf (“PTI”).
7. Within the same month, the Applicant was assaulted again by some Shias. They threatened to kill him next time.
8. The Applicant still dared not report the matter to the police. He left home and stayed in a relative’s place for some months. Some armed Shias were after him. The Applicant then moved to Lahore to stay with a friend. However, he missed his family so he returned to his home town later. He stayed in a friend’s place. The enemies once came to look for him but he was not there.
9. The Applicant feared for his life. On 21 January 2016, he left Pakistan for China. He stayed in China for a month and sneaked into Hong Kong on 18 February 2016. The Applicant surrendered to the Immigration Department on the next day. In August 2016, he raised a non-refoulement claim.
10. The Applicant lost contact with his family after coming to Hong Kong.
11. The Applicant said his enemies were powerful so state protection and internal relocation were not available to him.
12. 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 rejected 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 10 May 2018, 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 case on a rehearing basis.
15. 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.
16. 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. I shall deal with his application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 7 June 2017, 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 rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed him on 11 December 2017.
19. The Adjudicator found the Applicant’s evidence vague and evasive. The Applicant could not provide details of his many allegations. He said he forgot the details since all happened a long time ago. The Adjudicator did not accept such explanation. She found it implausible that the Applicant would forget those significant details[6].
20. The Adjudicator also found a number of inconsistencies in the Applicant's claim.[7]
21. The Adjudicator concluded the Applicant was not truthful. She did not find the Applicant's claim credible. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 29 March 2018, she rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
22. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 16 above, I would deal with the current application in relation to the Board's decision only as the Director's decision had gone on appeal to the Board as rehearing.
23. The Applicant said the Adjudicator failed to make sufficient enquiry. He said he had no or limited option at his disposal to bring evidence before the Board because he was in custody at the Immigration Detention Centre.
24. The Applicant also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his appeal.
Court hearing
25. The hearing took place on 31 August 2018. The Applicant was in person. An Urdu interpreter provided service in court.
26. The Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application. All the grounds of judicial review were in the documents.
27. The Applicant mentioned in his documents he was in custody and that affected his proving the non-refoulement claim.
28. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. 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’.[8] 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.” [9]
31. The Applicant said he had no or limited option at his disposal to bring evidence before the Board because he was in custody at the Immigration Detention Centre. He also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his appeal.
32. In court, the Applicant admitted he had not been detained after getting recognisance on 30 March 2016. The Director interviewed him on 29 May 2017. The Director's decision came out on 7 June 2017. The Applicant appealed to the Board. He appeared before the Adjudicator on 11 December 2017. It is clear the Applicant had much time and was at liberty to prepare for his claim before the Director and the Board.
33. The Applicant complained the Adjudicator failed to make sufficient enquiry. I do not agree. The Adjudicator’s report showed she dealt with the Applicant's claim in depth. The Applicant failed to point out what the insufficiencies were.
34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding and decision which were not Wednesbury unreasonable. She 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. She 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
35. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 22nd day of August 2019
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(Henry Ng)
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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant on 22/8/2019
Ijaz Ahsan
Applicant’s ref. no:
Nil.
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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 22/8/2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 867/17 (formerly RBCZ 12888/16)
Adjudicator of the
Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 7504/17/6/200/P1486
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] The Adjudicator's decision, para 40.
[7] ibid., paras 41-44.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
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