Ahmed Nawaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 770/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Pakistan national. He is now aged 29 (DOB: 28 June 1988).
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HCAL770/2017 [2018] HKCFI 997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 770 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a Pakistan national. He is now aged 29 (DOB: 28 June 1988). 2.The Applicant claimed that he would be killed by a friend called Malik Afzaal (“MA”). That friend asked him to join his group to do bad things for money such as stealing, robbery, murder, etc. The Applicant refused and MA threatened to kill him. The Applicant finally came to Hong Kong to seek non-refoulement protection. 3.It is not clear from the file when the Applicant arrived in Hong Kong and in what status. However, the information shows he submitted his non-refoulement claim as early as 16 July 2007. The Director conducted four interviews with him between October 2007 and February 2008. 4.Before the Director determined on the Applicant's claim, the Applicant on 20 May 2011 wrote to the Director to request cancellation of his claim. He said he felt safe to return home then. However, the Applicant did not leave Hong Kong accordingly. Six years later, he wrote to the Immigration Department on 6 April 2017 to ask for his case to be reopened. He asserted that “issues in conflict have arisen again after he made the decision to withdraw his claim”. The Director requested the Applicant to provide further information in order to consider his request of reopening the claim. 5.The Applicant replied by a letter dated 24 April 2017. He said his enemies had changed their mind on 27 March 2015 when meeting his father in Pakistan, so now it would not be safe for him to return there. The Applicant said his enemies had even beaten up and threatened to kill his father. 6.On 16 May 2017, the Director refused the Applicant’s request of reopening his case. 7.On 31 May 2017, the Applicant appealed to the Board. 8.On 14 September 2017 the Adjudicator heard the Applicant in the appeal hearing. 9.On 11 October 2017, the Adjudicator confirmed the Director’s refusal to allow the Applicant to reopen his case. 10.On 16 October 2017 the Applicant applied for judicial review. Chronology of events 11.Things happened in this order: –
Respondents 12.On 16 October 2017, the Applicant filed Form 86 (the notice of application for leave to apply for judicial review) [Folio 1]. In the ‘proposed respondent’ section, he wrote “PETITION TEAMS (SECUIRTY BUREAU)” and referred to the decision dated 11 October 2017. That was the date of the Board’s decision. 13.In support of his application for judicial review, the Applicant submitted a one-page affirmation also dated 16 October 2017 [Folio 2/Exhibit 1]. He complained that the petition teams never tested his case properly and he was not given the time to explain his present situation and life problem. The Applicant said his father had now disappeared and he himself was unable to go back to his homeland. 14.Apparently, the Applicant wanted to seek leave for judicial review against both the Director and the Board for their refusal to reopen his case. 15.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.[1] 16.In the present case, the Director’s decision dated 16 May 2017 was more than three months old by the time the Applicant filed his current application on 16 October 2017. However, the Applicant should not seek judicial review against the Director’s decision before the Board rendered its appeal decision on 11 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 albeit late on 16 October 2017; the application against the Board’s decision was made within time. 17.Thus, both the Director and the Board are named as respondents in the current application. No request of hearing 18.Order 53, rule 3 of the Rules of the High Court states:
19.In Form 86, the Applicant has not requested a hearing. Nor has he stated such a wish in his affirmation. There is nothing unambiguous in the application that calls for a hearing. As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only. Director of Immigration (the Director) 20.In the Director’s decision dated 16 May 2017, the immigration officer noted what the Applicant said in his letter dated 24 April 2017. Among other things, the Applicant alleged his father in Pakistan had settled the matter with the enemies. However, in a face-to-face meeting on 27 March 2015 the enemies changed their mind. They beat up the Applicant’s father and even threatened to kill him. The Applicant said the government would not help him as his enemies were “very strong politically in Pakistan”. The Applicant further said the enemies had already hired rascals to execute their death threats. 21.The immigration officer noted that while the Applicant alleged his enemies changed their mind on 27 March 2015, the Applicant still showed willingness to return to Pakistan when he answered recognizance on 26 May 2016. The officer also noted that the Applicant’s further alleged risk was based on hearsay only. 22.Having studied the Applicant’s case and the further information he had submitted, the officer considered there had been no change of circumstances that could not reasonably have been foreseen by the Applicant when he withdrew his claim. The officer also found no special circumstances in the Applicant’s case that would make it unjust to refuse to reopen his non-refoulement claim. TCAB/NCPO (“the Board”) 23.The Adjudicator heard the Applicant in the appeal hearing on 14 September 2017. The Applicant basically repeated what he had stated in his letter dated 24 April 2017 but added that:
24.The Adjudicator found that the Applicant told him something different from his previous allegation. The Applicant’s original claim was based on fear of MA, who asked the Applicant to join his group “to do things for money such as stealing, robbery and murder, etc”. Now the Applicant alleged a land dispute between his family and relatives. The Adjudicator found the Applicant unreliable and his claim incredible. 25.The Adjudicator considered that, regardless of the credibility issue, there was no change of circumstances that could not reasonably have been foreseen by the Applicant. He considered the alleged change of mind on the part of the Applicant's enemies was not something reasonably unforeseeable when the Applicant made his withdrawal of claim in mid-2011. The Adjudicator also found no special circumstances that would make it unjust not to allow the Applicant to reopen his case. He dismissed the Applicant’s appeal on 11 October 2017. Grounds for judicial review 26.The Applicant complained that “the petition teams” never tested his case properly and that he was not given the time to explain his present situation and life problem. He said his father had now disappeared and he was unable to go back to his homeland. Discussion 27.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 28.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’.[2] Withdrawal of claim 29.Section 37ZE of the Immigration Ordinance, Cap 115 provides:
30.If the Applicant wanted to reopen his claim, he must provide sufficient evidence in writing to satisfy the Director that there had been a change of circumstances which could not reasonably have been foreseen by him and, if there were such changed circumstances, they could increase the prospect of success of his claim when taken together with the material he had already submitted to the Director. Or there existed special circumstances that would be unjust for the Director not to reopen the claim. 31.The Director had conducted four interviews with the Applicant between October 2007 and February 2008. In May 2011, the Applicant wrote to the Director to request cancellation of his claim because he felt safe to return home then. However, he did not leave Hong Kong accordingly. He wrote to the Director only six years later on 6 April 2017 to ask for his case to be reopened. The Director duly requested the Applicant to provide further information to consider such request. The Applicant did reply by a letter dated 24 April 2017, where he alleged his father had arranged for a settlement with the enemies. However, the enemies changed their mind on 27 March 2015. The enemies even beat up and threatened to kill his father. 32.The Director noted that even though the Applicant said his enemies changed their mind on 27 March 2015, the Applicant on 26 May 2016, i.e., 14 months later, still showed willingness to return to Pakistan. The Applicant only wrote after another 10 odd months on 6 April 2017 to the Director to ask for his case to be reopened. [It was then already more than two years after the Applicant’s enemies allegedly changed their mind on 27 March 2015.] 33.The Director found there was no change of circumstances that could not reasonably have been foreseen by the Applicant when he withdrew his claim and which when taken together with the material the Applicant had previously submitted could increase the prospect of success of the claim. The Director also did not find any special circumstances that would make it unjust not to reopen the Applicant’s case. 34.The Applicant appealed to the Board. The Adjudicator heard him and noted there were material discrepancies in the Applicant's allegations (see paras 23-24 above). The Adjudicator found the Applicant unreliable and his story incredible. 35.The Adjudicator independently formed his view that there was no change of circumstances that could not reasonably have been foreseen by the Applicant when he withdrew his claim and which when taken together with the material the Applicant had previously submitted could increase the prospect of success of the claim. The Adjudicator also considered that there were no special circumstances to make it unjust not to allow the claimant to reopen his claim. 36.In light of the Applicant's original allegation, his enemies were unlikely to leave him alone or have the matter got over, so much so that the Applicant had to leave his home country. Thus, the enemies’ alleged change of mind on settlement was not something that could not reasonably have been foreseen by the Applicant in the circumstance when he made his withdrawal application in mid-2011. Both the Director and the Adjudicator were right in such decision. They were also right to find that there were no special circumstances to make it unjust not to allow the claimant to reopen his claim. 37.In my judgement, the Director and the Adjudicator had proper basis for their 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 complaint against the Director or the Board. The Applicant had been given reasonable and sufficient opportunities to justify his request of reopening his case. The Director and the Adjudicator were acquainted with the Applicant's case and gave careful consideration to his request. They applied the law correctly. They were entitled to render those decisions as they did and those decisions were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement case. Conclusion 38.The Applicant’s complaint is 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 9th day of May 2018.
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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