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HCAL 612/2017
[2019] HKCFI 218
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 612 of 2017
BETWEEN
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Afsar Khan |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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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 54 (DOB: 1 January 1965).
2. The Applicant claimed he would be harmed or killed by Afzal, who was the son-in-law of Mubarak’s brother. Mubarak was the Applicant's late uncle.
3. The Applicant was a Sunni Muslim. Mubarak was also a Sunni Muslim. Afzal was a Shia Muslim.
4. Mubarak died in 1995. The Applicant wanted to hold the funeral according to Sunni practice. Afzal disagreed. The two quarrelled and fought with each other. No one was injured. However, Afzal fabricated allegations against the Applicant and the Applicant’s family. He falsely told the police that the Applicant pointed a pistol at him during the fight.
5. The Applicant left home in fear. He went into hiding and lived in different places.
6. The court case against the Applicant dragged on. He and the other defendants were acquitted by the court in February 1997.
7. The Applicant claimed Afzal often went to his home to look for him. He wanted to fight with the Applicant. The Applicant feared Afzal would harm or kill him. He thought state protection and internal relocation were not feasible as Afzal and his brother had connection with the ruling party, the Pakistan People’s Party (“PPP”). Afzal’s brother was well recognized by others in PPP.
8. The Applicant left Pakistan for China on 11 February 2008. On 18 February 2008, he entered Hong Kong illegally from China. He surrendered to the Immigration Department on 7 April 2008.
9. The Applicant subsequently applied to UNHCR for refugee status but his application was rejected.
10. In May 2009, the Applicant filed a torture claim.
11. In the ensuing two-tier screening process, 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 12 September 2017, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2008-2-11 |
The Applicant left Pakistan for China. |
| 2008-2-18 |
The Applicant entered Hong Kong illegally. |
| 2008-4-7 |
The Applicant surrendered to the Immigration Department. He later applied to UNHCR for refugee status. His application was refused. |
| 2009-5-5 |
The Applicant filed a torture claim. |
| 2015-2-11 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2015-12-1 |
The Applicant appeared before the Board for appeal. |
| 2016-12-5 |
The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Board’s decision”] |
| 2016-12-23 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-1-6 |
The Applicant made further submission by letter to the Director. |
| 2017-5-4 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-9-5 |
The Adjudicator refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Board's further decision”] |
| 2017-9-12 |
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 decisions. He can only seek leave for judicial review against the Board's decisions.
17. There were two decisions made by the Board: the Board's decision dated 5 December 2016 and the Board's further decision dated 5 September 2017. The Applicant in Form 86 only applied for leave for judicial review of the decision made by the Adjudicator with Ref: USM BOR 599/17/5/99/P170. That reference was for the Board's further decision only. In his affirmation dated 12 September 2017, the Applicant also merely referred to ‘the adjudicator’s decision dated 5 September 2017’. He only attached the Board's further decision as Exhibit “B” but no copy of the Board's previous decision. In page 31 of his Exhibit “A”, the Applicant said clearly “I seek to challenge the decision made by (William Lam) member of the Torture Claims Appeal Board (“the Adjudicator”), dated 5 September 2017 (“Appeal Decision”) confirming the Immigration Officer’s decision contained in the Further Notice of Decision dated 4 May 2017 refusing the Applicant's claim for non-refoulement under BOR2 risk (“the Immigration Further Decision”). As such, the current application for leave for judicial review is only valid in relation to the Board's further decision dated 5 September 2017.
The Director's decision
18. In his decision dated 11 February 2015, the Director did not accept the Applicant faced any torture risk, persecution 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 claim with respect to those three applicable grounds.
19. In his further decision dated 4 May 2017, the Director did not accept the Applicant faced BOR2 risk. He refused the Applicant's claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 1 December 2015. The Applicant decided not to testify.
21. The Adjudicator noted the Applicant delayed in raising his claim. The Applicant did not seek asylum as soon as he arrived in Hong Kong. He surrendered to the Immigration Department one odd months later. The Adjudicator also found it odd that the Applicant should leave his country for some alleged incidents which occurred many years ago. He was not satisfied the Applicant was in genuine need of non-refoulement protection. He did not find the Applicant's claim credible or reliable.[6]
22. The Adjudicator considered that even on the Applicant’s own account of events, the complained situation was only a private dispute between him and Afzal. There was no involvement of state agent. There was no evidence of state instigation, authorisation or acquiescence of any form. The Applicant was not targeted by the Pakistan state. He had not suffered any ill-treatment to a minimum level of severity. The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.[7]
23. On 5 December 2016, the Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk.
24. In his further decision dated 5 September 2017, the Adjudicator noted the ‘additional’ information in the Applicant’s letter of 6 January 2017. He considered there was nothing new in that submission other than hearsay and vague/unreliable details. The Adjudicator considered there was no need to hold further hearing. He did not accept the Applicant faced BOR2 risk.
Grounds of judicial review
25. In his affirmation, the Applicant complained there was no legal representation after the Director's decision dated 11 February 2015. He accused the Adjudicator failed to consider all the evidence he had submitted including the information in his letter of 6 January 2017. He also complained the Adjudicator failed to conduct any oral hearing. He disagreed that reasonable state protection and internal relocation were available to him in Pakistan. The Applicant said the Adjudicator adopted a biased and formula approach in assessing his claim.
Court hearing
26. The hearing took place on 25 July 2018. The Applicant was in person. An Urdu interpreter provided service in court.
27. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
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 had been represented by the Duty Lawyer Service up to the Director's decision dated 11 February 2015. He complained there was no legal representation thereafter.
32. 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.[10] 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.
33. The Applicant complained the Adjudicator failed to consider all the evidence he had submitted including the information in his letter of 6 January 2017. That was not true. The Adjudicator had considered the Applicant's case meticulously, including his submission via the letter of 6 January 2017. The Adjudicator found there was nothing new in that submission other than hearsay and vague/unreliable details. He was entitled not to attach weight to such information.
34. The Applicant complained the Adjudicator failed to conduct any oral hearing. That was not true. The Adjudicator tried to interview the Applicant on 1 December 2015. The Applicant decided not to testify. The Adjudicator was aware of the Applicant's later submission in his letter of 6 January 2017. He found there was no new information in that submission other than hearsay and vague/unreliable details. The Adjudicator was entitled not to hold further hearing in the circumstance. The Applicant failed to show he had worthwhile or effective representations to make. In court, the Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his claim.
35. The Applicant accused the Adjudicator of adopting a biased and formula approach in assessing his claim. That was a vague accusation and an unfair one to make. The Adjudicator had looked at the Applicant's case seriously and in depth.
36. I have reviewed the Adjudicator’s further decision and also his earlier 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
37. 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
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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
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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 1/2/2019
Afsar Khan
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 1/2/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1028/15/2/176/P318 & BOR 599/17/5/99/P170
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 515/14 & RBCZ9001365/16 (formerly RBCZ 1531/09; RBCZ 9001256/16)
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 Board's decision, paras 31-34.
[7] Ibid., paras 5-29.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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