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HCAL786/2017
[2018] HKCFI 1065
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 786 of 2017
BETWEEN
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KHAN Amir Dad |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board /
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 Pakistan national. He is now aged 42 (DOB: 3 July 1975).
2. In 2004, the Applicant met a girl called Sheema. Bahar was Sheema’s uncle; Gulzar was her cousin and a notorious person with affiliation to some gangsters. They wrongly thought the Applicant had an affair with the girl. The Applicant was a married man. Bahar and Gulzar considered the adulterous relationship between the Applicant and Sheema had insulted them. They threatened to kill Sheema and the Applicant.
3. In 2006/2007, Bahar openly threatened to kill the Applicant. The Applicant wanted to avoid him. He went to Dubai. However, he could not find a job there so he went back to Pakistan.
4. In February 2008, some people threw stones into the Applicant’s house in the early morning. They even tried to force open the door-gate. The Applicant believed Bahar was involved.
5. The Applicant moved with his wife and children to live in another place in 2008. However, he still received death threats on the phone.
6. In late 2009, the Applicant returned to his village for a brief visit. Some men including Bahar and Gulzar approached him in a car and fired a few shots into the sky to intimidate him. They then left.
7. In August 2011, Bahar went to the place where the Applicant lived. He threatened he would not spare the Applicant. He then left. The Applicant believed Bahar did not harm him on that occasion only because there were too many people at the scene.
8. The Applicant said he had ceased meeting Sheema in 2008 but he still received death threats on the phone on numerous occasions. Even after he had come to Hong Kong, he still received Bahar’s death threats on the phone many times. Bahar said he was waiting to kill the Applicant.
9. The Applicant said Bahar had strong network in Pakistan. He did not believe internal relocation or state protection were available to him in Pakistan. He did not report the matter to the police because he believed the police were corrupt and connected with Bahar. They would tell Bahar of his whereabouts. The Applicant feared more harm would be done to him and his family if he reported the matter to the police.
10. In 2012, the Applicant decided to go to Hong Kong. Actually, he had been to Hong Kong in 2001 on a visitor visa. On that occasion, he overstayed. He was arrested by the police later and sent back to Pakistan in 2003.
11. The Applicant left Pakistan on 18 May 2012 for China. On 25 May 2012, he sneaked into Hong Kong by crossing the land border. He was arrested by the police. He subsequently raised a non-refoulement claim.
12. In the ensuing two-tier screening process (“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].
13. On 19 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
14. Things happened in this order: –
| 2001-7-20 |
The Applicant came to Hong Kong as a visitor. He was allowed to stay for seven days. |
| 2003-1-30 |
The Applicant was arrested by the police for overstaying. |
| 2003-2-28 |
The Applicant was repatriated to Pakistan. |
| 2012-5-18 |
The Applicant left Pakistan for China. |
| 2012-5-25 |
The Applicant entered Hong Kong illegally from China. He was arrested by the police. |
| 2015-10-15 |
The Director held a screening interview with the Applicant. |
| 2015-10-23 |
The Director refused the Applicant’s claim with respect to three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3 risk). |
| 2017-1-5 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-1-19 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-1-25 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (or BOR2 risk). |
| 2017-3-7 |
The Applicant appeared before the Board for appeal. |
| 2017-10-13 |
The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. |
| 2017-10-19 |
The Applicant applied for leave for judicial review. |
Respondents
15. 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.
16. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.
17. The Adjudicator did not act in her personal capacity. She represented the Board. Therefore, the Applicant was actually suing the Director and the Board as respondents.
18. 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]
19. In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 19 October 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 13 October 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 and further decision albeit late on 19 October 2017; the application against the Board's decision was made within time.
20. There are two respondents in the current application: the Director is the first putative respondent; the Board is the second putative respondent.
Director of Immigration (the Director)
21. In the Director’s decision dated 23 October 2015, the immigration officer found the level of risk of harm from Bahar and Gulzar was low. They had not actually harmed the Applicant. The officer did not accept Bahar and Gulzar had any real intention to harm or kill the Applicant. There were no substantial grounds to believe the Applicant would be subjected to any foreseeable and real risk. On the other hand, there was reasonable state protection, only that the Applicant did not report the matter to the police in Pakistan. Reasonable internal relocation was also available to the Applicant.
22. The officer did not accept the Applicant faced a genuine and substantial BOR3 risk. There was also no well-founded persecution risk as the Applicant was not persecuted on account of race, religion, nationality, membership of a particular social group or political opinion. The officer further found that the Applicant’s feared risk had nothing to do with state instigation or state acquiescence. There were no substantial grounds to believe the Applicant would be subjected to a real 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 (or 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 (or BOR2 risk). However, the Applicant did not respond by the deadline of 19 January 2017 or thereafter.
25. In the Director’s further decision dated 25 January 2017, the immigration officer considered that 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 (or 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.
28. The Adjudicator did not accept Bahar and Gulzar had real intention to kill or harm the Applicant. There was no instigation of risk by officials or the state. On the other hand, state protection and internal relocation were available to the Applicant in Pakistan. The Adjudicator found the Applicant failed to prove any genuine and substantial BOR3 risk or BOR2 risk. There was no torture risk or well-founded persecution risk either.
29. On 13 October 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
30. The Applicant had submitted Form 86 and an affirmation dated 19 October 2017 together with exhibits “KAD 1” – “KAD 7”.
31. In Form 86, the Applicant complained the Director had not properly considered state acquiescence and unduly decided on that issue; failed to attain the high standards of fairness and rendered unreasonable decisions.
32. The Applicant also accused the Adjudicator of failing to make sufficient inquiry and failed to give him sufficient chance to submit relevant evidence.
Court hearing
33. In Form 86, the Applicant requested a hearing. The hearing took place on 10 May 2018. The Applicant was in person. A Pushto interpreter rendered interpretation service in court.
34. The Applicant said he had put down all the grounds of his current application in Enclosure 2 of Form 86. They are vague allegations. In court, the Applicant was invited to elaborate on those grounds and to give specifics. He failed to do so. He merely said there was still personal life-danger in Pakistan and he could not go back.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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]
37. The Applicant’s complaints against Director and the Adjudicator are vague. In court, he was asked to elaborate or particularise his complaints. He could not. He just said it was still dangerous for him to go back to Pakistan.
38. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.
39. I am satisfied the immigration officer on behalf of the Director had duly considered the issue of state acquiescence. She had proper basis to conclude there was no state acquiescence in the Applicant’s case. Her findings, conclusions and decisions were not Wednesbury unreasonable. She had attained the high standards of fairness required of the Applicant's claim.
40. As to the Applicant's complaints against the Adjudicator, there is no evidence to show the Adjudicator failed to make sufficient inquiry or the Applicant was deprived of any chance to submit evidence for his claim. The Adjudicator had also attained the high standards of fairness required of the screening process.
41. The Applicant’s complaints against the Director and the Adjudicator are groundless.
42. In my judgement, the Director and the Adjudicator 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 the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening inquiry. 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 adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
43. 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.
Dated 21st day of May 2018
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(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: |
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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 21/5/2018
KHAN Amir Dad
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 21/5/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 958/15 (formerly RBCZ 505/12)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 2502/15/11/14/P686
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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