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HCAL 1142/2017
[2018] HKCFI 1845
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1142 of 2017
BETWEEN
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Safdar Muhammad |
Applicant |
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and |
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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 39 (DOB: 15 January 1979).
2. The Applicant claimed he would be harmed or killed by people of the Pakistan Muslim League (N) [“PML(N)”] because he supported another political party called the Pakistan Tehreek-e-Insaf (“PTI”) .
3. The Applicant said he became a supporter of PTI in 2012. He did not hold any position. He would persuade people to vote for PTI.
4. PML(N) was an opponent party. Its leader was Abdul, who was rich and influential. Abdul was also the councillor in the local area.
5. Abdul did not like the Applicant to work for PTI. He often threatened the Applicant that he should quit PTI and join PML(N). Abdul threatened to kill the Applicant if he did not follow his words.
6. The Applicant had reported the matter to the police twice. However, the police ignored him. The Applicant believed the police favoured PML(N) members and rich people.
7. In November 2012, Abdul and some armed men confronted the Applicant. Abdul repeated his demand that the Applicant should quit PTI and join PML(N). The Applicant again refused. He tried to run away. While running, the Applicant heard two shots but he was not hit by bullets.
8. The Applicant did not report the matter to the police this time because the police had ignored him previously.
9. The Applicant fled to another place called Rawalpindi. He learnt from his family that Abdul and some armed men had been looking for him. Those men threatened the Applicant’s father that they would kill the Applicant.
10. The Applicant heard Abdul had killed people who went against him. The Applicant was very frightened and decided to leave Pakistan. His father made arrangement for him.
11. The Applicant left Pakistan for China on 16 February 2013. On 1 March 2013, he entered Hong Kong illegally from China by boat. He did not seek non-refoulement protection immediately.
12. The Applicant was arrested by the police five months later on 17 August 2013 for illegal remaining. He applied for protection subsequently.
13. The Applicant said PML(N) was still ruling Pakistan. Abdul remained as a councillor in the local area. Abdul knew he had left Pakistan but continued to threaten his family that he would kill the Applicant.
14. The Applicant said the Pakistan authorities were corrupt. He had no money to bribe the officials so they would not protect him. He also accused the Pakistan authorities favoured PML(N).
15. The Applicant did not think internal relocation was viable.
16. 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 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].
17. On 27 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
18. Things happened in this order: –
| 2013-2-16 |
The Applicant left Pakistan for China. |
| 2013-3-1 |
The Applicant entered Hong Kong illegally. |
| 2013-8-17 |
The Applicant was arrested by the police. |
| 2013-8-21 |
The Applicant lodged a non-refoulement claim. |
| 2016-1-15 |
The Director interviewed the Applicant. |
| 2016-5-30 |
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”] |
| 2017-6-21 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-7-5 |
The Applicant failed to submit any additional facts by the deadline or thereafter. |
| 2017-9-25 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2017-11-7 |
The Applicants appeared before the Board for appeal. |
| 2017-12-15 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-27 |
The Applicant applied for leave for judicial review. |
Respondents
19. 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.
20. 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.
21. 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]
22. In the present case, the two Director's decisions were more than three months old by the time the Applicant filed his current application on 27 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 15 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 27 December 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
23. In the Director’s decision dated 30 May 2016, the immigration officer considered there were no substantial grounds for believing the Applicant’s perceived risk was likely to materialise. The officer found there was no sufficient evidence to show the Applicant had been inflicted with ill-treatment to a minimum level of severity. There was also no evidence that he was targeted by PML(N) or the Pakistan government. The officer did not accept the Applicant’s alleged enemies were still interested in him.
24. The Applicant did not seek non-refoulement protection here until he was arrested in August 2013. That was more than five months after he had arrived in Hong Kong in early March 2013. The officer did not accept the Applicant’s explanation that the delay was due to language barrier. He did not accept that the Applicant came to Hong Kong for fear of being harmed by the alleged enemies.
25. In any event, having considered relevant country-of-origin information (“COI”) concerning police corruption and government reforms in Pakistan, the officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
26. The officer did not accept the Applicant had any real torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
27. 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). However, the Applicant did not respond by the deadline or thereafter.
28. In the Director’s further decision dated 25 September 2017, 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 claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
29. The Adjudicator found there were doubtful and exaggerating features in the Applicant's allegations. He was not convinced by the Applicant. The Adjudicator was not satisfied the Applicant was a genuine seeker of non-refoulement protection. [6]
30. The Adjudicator considered that even on the Applicant's own account of events the Applicant had never been tortured or inflicted with ill-treatment to a minimum level of severity by his alleged enemies. There was no evidence of instigation, consent or acquiescence by the state, officials or persons acting in official capacity. The Applicant's complained situation was only a personal dispute rather than persecution on account of race, religion, nationality, membership of a particular group or political opinion.
31. The Adjudicator had studied relevant COI. He was aware there were reports of police corruption in Pakistan. However, there was also objective COI to show the Pakistan government had taken practical steps to monitor the police and to improve their effectiveness. The Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant.
32. The Adjudicator found the Applicant faced no 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
33. In his affirmation, the Applicant had these complaints: –
a. lack of legal representation;
b. lack of language assistance;
c. lack of fair hearing.
Court hearing
34. The Applicant requested a hearing. The hearing was scheduled for 12 June 2018. The Applicant was absent. The Bengali interpreter had called the Applicant's mobile number three times. No one answered.
35. Up to today, the court has not heard from the Applicant to explain why he was absent on 12 June 2018.
Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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]
Lack of legal representation
38. The Applicant complained he had not been provided with legal assistance after the Director's decision dated 30 May 2016. He had legal assistance from the Duty Lawyer Service till then.
39. 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] The Applicant failed to state how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
Lack of language assistance
40. The Applicant complained there was lack of language assistance.
41. In the current application for leave for judicial review, the Applicant had Form 86 and his affirmation prepared in English. If they were not the Applicant's own work, then at least they showed he could find someone to provide him assistance in interpreting/translating/handling documents in English. I am sure it was the case at all material times and the Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.
42. The Applicant complained he was not given a translation of his non-refoulement claim form (NCF) by the Duty Lawyer Service. Therefore, he could not find out if the interpreter had translated/interpreted the basis of his claim properly.
43. I have found the Applicant could find someone to provide him assistance in interpreting/translating/handling documents in English at all material times. If the interpreter assisting in the filling of NCF had not translated/interpreted the Applicant's claim properly, I am sure the Applicant would have pointed out where the mistakes lied. He had not. There is no substance in his complaint.
Lack of fair hearing
44. The Applicant criticised the Director for failing to explain for his absence from the Board hearing on 7 November 2017.
45. The Director was excused from attendance in that hearing. The Applicant failed to show how the Director’s absence would prejudice his appeal.
46. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their 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 process. 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 applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
47. 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 13th day of August 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 13/8/2018
Safdar Muhammad
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 13/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3879/16/6/69/P1002
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1908/15 & RBCZ/9002442/17 (formerly RBCZ/455/14)
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] The Adjudicator’s Report, para 21.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
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