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HCAL192/2018
[2018] HKCFI 2336
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 192 of 2018
BETWEEN
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Mohamed Ashraf Mohamed Moustafa |
Applicant |
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and |
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William Lam, Esq. |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 t
Background
1. The Applicant is a national of Egypt. He is now aged 33 (DOB: 5 October 1985).
2. The Applicant claimed he would be harmed or killed by his creditor Ali Ahmed El Dardery (“Ali”) because he was not able to repay the latter.
3. The Applicant said that in 2012 he borrowed 40,000 Egyptian pounds from Ali in order to start a business. By September 2012, he could not keep up with the repayment. Ali chased him repeatedly and threatened to do something nasty against him.
4. In 2014, while the Applicant was away from home he learnt from his father that Ali had sent two men to look for him. Those men threatened they would cause the Applicant a lot of problems. Later, they came again to tell the Applicant's father they would do something bad.
5. The Applicant was afraid so he left Egypt for China in July 2015. He first entered Hong Kong on 9 July 2015. The Applicant did not seek non-refoulement protection immediately. He went to Macau on a few occasions and last entered Hong Kong on 11 February 2016. The Applicant began overstaying on 7 March 2016. He surrendered to the Immigration Department on 10 March 2016 and lodged his claim subsequently.
6. The Applicant last contacted his father in April 2017. He was told Ali was still enquiring of his whereabouts and threatened to do something against him.
7. The Applicant claimed Ali was rich and powerful. Ali had a lot of collections so it would not be difficult for him to track down the Applicant in Egypt.
8. The Applicant did not seek assistance from the Egypt police. He feared they would arrest him for not repaying the loan to Ali.
9. 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
10. On 8 February 2018, the Applicant applied for leave for judicial review.
Timeline
11. Things happened in this order: –
| July 2015 |
The Applicant left Egypt for China. |
| 2015-7-9 |
The Applicant entered Hong Kong from China as visitor. On 21 September 2015, he left Hong Kong for Macau. |
| 2015-9-23 |
The Applicant entered Hong Kong from Macau as visitor. On 4 December 2015, he returned to Macau. |
| 2015-12-4 |
The Applicant entered Hong Kong from Macau as visitor. On 11 February 2016, he returned to Macau. |
| 2016-2-11 |
The Applicant last entered Hong Kong from Macau as visitor. He was allowed to stay until 6 March 2016 but he failed to depart accordingly. |
| 2016-3-7 |
The Applicant began overstaying in Hong Kong. |
| 2016-3-10 |
The Applicant surrendered to the Immigration Department. He lodged a non-refoulement claim subsequently. |
| 2017-6-7 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. [“the Director's decision”] |
| 2017-11-30 |
The Applicant appeared before the Board for appeal. |
| 2017-12-29 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. |
| 2018-2-8 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
12. 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.
13. 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]
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
15. The Director did not accept the Applicant faced any real torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. On 7 June 2017, the Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
16. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 30 November 2017.
17. The Adjudicator found that even on the Applicant's own account of events there was no state instigation or involvement in the Applicant's complained situation. It was not on account of any Convention reasons. In any event, internal relocation was viable as the Adjudicator did not accept the Applicant's creditor would track him down anywhere in Egypt.
18. The Adjudicator noted that while the Applicant alleged he had great fears for his life, he did not seek protection in China or Macau. Nor did he apply for non-refoulement protection as soon as he arrived in Hong Kong in July 2015. The Applicant only surrendered to the Immigration Department in March 2016 a few days after his visa had expired. The Adjudicator was not satisfied with the Applicant’s explanation of ignorance. He considered the Applicant unreliable and was not convinced by the Applicant’s claim. The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.[6]
Grounds of judicial review
19. In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
20. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Egypt a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
21. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
22. The Applicant also complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
23. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on the issue of BOR2 risk without screening.
Court hearing
24. In Form 86, the Applicant requested a hearing. The hearing was scheduled for 25 June 2018. The Applicant was absent. The court has not heard anything from him since then.
Discussion
25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
26. 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’.[7] 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.” [8]
27. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 7 June 2017 covered all the four applicable grounds including BOR2 risk.
28. The Applicant complained there were failures by the assigned duty lawyer. The Applicant, however, provided no particulars.
29. The Applicant said there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 7 June 2017.
30. 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.[9] 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.
31. The Applicant raised his language problem. In the current application, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.
32. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
33. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.
34. The Director stated in his letter dated 11 September 2018 that the appeal bundle was served on the Applicant on 23 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 30 November 2017. Thus, the bundle was served on the Applicant in time.
35. 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 difficult. There was no evidence to show the bundle was difficult or voluminous.
36. A few days certainly 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
37. The Applicant said he answered all the questions honestly in the Board hearing.[12] That would mean he knew well what was asked and how to answer. He was not confused.
38. The Applicant complained the Adjudicator failed to make a finding of fact as to whether there existed in Egypt a consistent pattern of gross, flagrant or mass violations of human rights. First, the Applicant failed to prove there were such violations in his country. Secondly, he failed to show how they would be relevant to his case.
39. The Applicant also failed to show why the Adjudicator should call for psychological and psychiatric reports.
40. The Adjudicator did not have to consider the issues of state protection and state acquiescence as he had found the Applicant failed to establish any real torture risk, persecution risk, BOR2 risk or BOR3 risk.
41. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.
42. There are other vague complaints by the Applicant. 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’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
43. 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 the review.
Dated 29th day of October 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 29/10/2018
Mohamed Ashraf Mohamed Moustafa
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 29/10/2018
William Lam, Esq.
Putative Respondent’s ref. no.:
USM 7529/17/6/225/E53
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 779/17 (formerly RBCZ 13726/16)
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] CACV 54/2018, para 45.
[6] The Board's decision, paras 31-35.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 5 on page 18.
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