KHAN SHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL629/2017

[2018] HKCFI 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 629 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 43 (DOB: 1 March 1975). 

2.  The Applicant claimed he would be harmed and killed by Babar Ayub (“BA”). BA was his business partner. They started a food business in 2005 and made huge profits. BA wanted to seize the Applicant’s business, money and home.

3.  The Applicant said BA was a Shia Muslim and an active supporter of the Pakistan Tehreek-e-Insaf Party (“PTI”). BA’s late father was a high-rank official. The influential Station House Officer (a high-rank police officer) in the local area was BA’s cousin.

4.  The Applicant alleged some masked men kidnapped him in March 2011. They were instructed by BA and demanded the Applicant to pay a ransom of 1.5 million Pakistan rupees. He could not pay. Those men then beat him and gave him injections. They forced him to sign some documents including a cheque payable to BA in the amount of 1.5 million Pakistan rupees.

5.  The kidnappers managed to make the Applicant’s family pay a ransom of 1.5 million Pakistan rupees. The Applicant was then released after having been detained for several days.

6.  The Applicant went home after being discharged from the hospital. He would not let BA seize his house. BA on the phone threatened to frame the Applicant up and said the police would torture the Applicant to death if he would not surrender his house.

7.  The Applicant dared not report the matter to the police because the kidnappers had threatened him not to. Also, the Station House Officer of the local area was BA’s cousin. He was called Saeed. Saeed had even gone to the Applicant’s home with some policemen to demand the Applicant to pay 1.5 million Pakistan rupees to BA.

8.  The Applicant said he did not report the matter to the higher authorities because he feared Saeed and the police.

9.  In June 2011, the Applicant fled to Karachi with his family to live with his parents-in-law. He was still in fear. He learnt BA had complained him of not honouring that 1.5 million-rupee cheque and the police were looking for him.

10.  In September 2013, the Applicant received a call from BA. BA said he knew the Applicant was in Karachi. He threatened to kill the Applicant because the latter had not surrendered his house.

11.  On 3 October 2013, the Applicant left Pakistan for China. He later entered Hong Kong illegally and raised a non-refoulement claim on 25 October 2013.

12.  The Applicant did not think the Pakistan police would protect him. Internal relocation was not viable because of the lack of means. The Applicant also alleged BA had wide connections to find him in Pakistan.

13.  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]

14.  On 18 September 2017, the Applicant applied for leave for judicial review.

Chronology of events

15.  Things happened in this order: –

2013-10-3	The Applicant left Pakistan for China. He later sneaked into Hong Kong.
2013-10-21	The Applicant was arrested by the police.
2013-10-25	The Applicant filed a non-refoulement claim.
2016-1-28	The Director interviewed the Applicant.
2016-5-3	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”]
2017-6-5	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2017-6-19	The Applicant submitted a letter to the Director.
2017-6-23	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2017-8-8	The Applicant appeared before the Board for appeal.
2017-9-8	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2017-9-18	The Applicant applied for leave for judicial review.

Respondents

16.  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 complaint on a rehearing basis.

17.  In Form 86, the Applicant named the Director and the Board as respondents. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

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 dated 3 May 2016 was more than three months old by the time the Applicant filed his current application on 18 September 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 8 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 18 September 2017; the application against the Director's further decision and Board's decision was made in time.

Director of Immigration (the Director)

20.  In the Director’s decision dated 3 May 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer found the level of risk against the Applicant by his alleged enemies was low.

21.  The officer found the Applicant was not targeted by the Pakistan government. The Applicant's complained situation was not instigated, acquiesced or consented by the state.

22.  The officer was aware there were reports of police misconduct. However, there was also objective country-of-origin information (“COI”) showing ongoing reforms in the country and there were alternative avenues to seek justice in Pakistan. The officer was satisfied reasonable state protection and internal relocation were available to the Applicant.

23.  The officer did not accept the Applicant would face any real torture risk, persecution risk and BOR3 risk. He refused the Applicant’s claim with respect to those three applicable grounds. 

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). The Applicant sent a letter to the Director dated 19 June 2017 [details in para. 5 of the Director’s further decision dated 23 June 2017].

25.  In the Director’s further decision, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

26.  The Adjudicator found a number of inconsistent and incredible features in the Applicant’s allegations and that his claim lacked sufficient proof. He found the Applicant was dishonest and unreliable.

27.  Even on the strength of the Applicant’s allegations, the Adjudicator found there was no evidence that the Applicant had suffered ill-treatment to a minimum level of severity. There was also no evidence that his complained situation was instigated, authorised or acquiesced by the Pakistan government.

28.  The Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant.

29.  The Adjudicator did not accept the Applicant would face any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). 

Grounds for judicial review

30.  In his affirmation, the Applicant complained the Adjudicator cherry-picked information and rendered his decision like ‘formula work’. He said the Adjudicator refused his appeal without hearing. The Applicant also said he had not received the Director’s letter inviting him to submit additional facts for his claim.

31.  In pages 24-28 of Exhibit “A” attached to the affirmation, the Applicant had more complaints. He accused the Director and the Adjudicator did not consider his claim carefully. Contrary to what he had said in his affirmation that he had not received the Director’s letter inviting him to submit additional facts for his claim, the Applicant now changed to say he did receive that letter and he did submit additional facts and grounds on BOR2 risk. He complained he was not provided with further legal representation. He also complained the Director did not hold any screening interview in relation to BOR2 risk.

32.  The Applicant complained the ‘decision-maker’ failed to carry out sufficient research and inquiry of COI; failed to consider relevant information; failed to understand the human rights situation in Pakistan; ignored information favourable to his claim; cherry-picked information; took into account information of little or no relevance; failed to properly evaluate his claim; failed to clearly state the reasons for the decisions; rendered wrong and unfair decisions.

Court hearing

33.  The hearing took place on 29 May 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.

34.  The Applicant said he had more documents to submit to the court which were related to certain happenings two months ago in Pakistan. I refused to accept the alleged documents because they were said to be connected with events that occurred only after the proceedings in front of the Director and the Adjudicator. Apparently, those documents cannot be relevant to the consideration of judicial review against the Director and the Adjudicator.

35.  The Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application. He confirmed all the grounds of judicial review were in the documents. In court, the Applicant repeated some of the written grounds. He further complained he was only given the appeal bundle shortly before the Board hearing. He did not know English and he had no legal representation.

36.  The Applicant confirmed he had provided all the information and materials he had then to the Director and the Board. He, however, complained he was not given time to get hold of documents to prove his stay in the hospital relating to the alleged kidnap in 2011.

Discussion

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

38.  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]

39.  It is wrong for the Applicant to say the Adjudicator refused his appeal without hearing. The hearing took place on 8 August 2017. The Applicant was present. He actually testified and answered the Adjudicator’s questions.[7]

40.  The Applicant complained he was not invited by the Director to make oral submission on the BOR2 issue.

41.  In response to the Director's letter dated 5 June 2017, the Applicant sent to the Director a letter dated 19 June 2017. The Director had taken into account of what the Applicant said in that letter. The Applicant was merely repeating his earlier allegations. As such, the Director was entitled to proceed to consider the Applicant's claim without holding further interview. The Applicant failed to tell this court what more submission he could make if there was an interview on the BOR2 issue.

42.  In court, the Applicant complained he was given the appeal bundle only shortly before the Board hearing. He did not know English and he had no legal representation.

43.  The Applicant had legal assistance from the Duty Lawyer Service up to the Director’s decision coming out on 3 May 2016. 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.[8]

44.  I accept the Applicant did not know English. He certainly needed language assistance. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

45.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

46.  The Director confirmed in his letter dated 27 June 2018 that the Applicant received the appeal bundle 7 days prior to the appeal hearing scheduled for 8 August 2017. The appeal bundle was served 7 calendar days (or 6 working days) prior to the Board hearing. The service was made in time.

47.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not complicated. There was no evidence to show the appeal bundle was difficult or voluminous.

48.  A few days were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened.

49.  The Applicant further complained he was not given time to get hold of some documents to prove his stay in the hospital after the alleged kidnap in 2011.

50.  The Applicant had been in Hong Kong since October 2013. If he had really wanted to rely on the alleged 2011 hospital records, he would have had all the time to get hold of such proof. There is no ground for him to complain that he was not given time by the Director or the Adjudicator to get hold of the alleged documents.

51.  There are other vague complaints raised by the Applicant. I have reviewed the decisions of the Director and the Adjudicator under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had considered the Applicant's case carefully and applied the law correctly. They had proper basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable. They 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 Director and the Adjudicator gave due consideration of his claim.  They applied the law correctly. They made no errors of law and there was no procedural unfairness.  The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant's complaints.

Conclusion

52.  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