Mahmood Faisal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 653/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Pakistan national. He is now aged 32 (DOB: 14 June 1985).
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HCAL653/2017 [2018] HKCFI 999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 653 of 2017 BETWEEN
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:
Observations for the Applicant Background 1.The Applicant is a Pakistan national. He is now aged 32 (DOB: 14 June 1985). 2.The Applicant arrived in Hong Kong on 25 May 2012. He surrendered to the police on the same day and raised a torture claim. 3.The Applicant claimed he would be harmed or killed by Sheikh Amin (“SA”) in Pakistan. SA was his employer and a rich businessman. He was very influential and had connections with politicians in the country. In November 2011, the Applicant discovered SA had sex with a girl. The next day, the Applicant asked SA for his salary. SA excused that he had no money. The Applicant then threatened he would tell SA’s wife of the sex incident. SA warned the Applicant that if he should ask for money again, he would kill the Applicant. The Applicant did not report the matter to the police because the police was corrupt and SA was influential. 4.SA continued to refuse to pay the Applicant salary. The Applicant threatened to tell SA’s wife that he saw SA rape the girl. Soon, the Applicant received anonymous threatening calls from different people. The Applicant was so scared that he left Pakistan for Iran in February 2012. He only stayed in Iran shortly because he saw people related to SA there. After returning to Pakistan, the Applicant made arrangements to come to Hong Kong. He first went to China on 17 May 2012. Then he came to Hong Kong illegally on 25 May 2012. He surrendered to the police on the same day and applied for non-refoulement protection. 5.In the ensuing two-tier screening process (“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]. 6.On 21 September 2017, the Applicant applied for leave for judicial review. Chronology of events 7.Things happened in this order: –
Respondents 8.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. 9.In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents. 10.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] 11.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 21 September 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 31 August 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 21 September 2017; the application against the Board's decision was made within time. 12.As such, there are two respondents in the current application: the Board is the first putative respondent; the Director is the second putative respondent. Director of Immigration (the Director) 13.In the Director’s decision dated 5 October 2015, the immigration officer found that there was no evidence of any real risk that the Applicant would be subjected to serious harm by SA. Furthermore, there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan. The officer did not accept the Applicant would face genuine and substantial BOR3 risk or persecution risk. The officer also noted that there was no severe pain or suffering inflicted upon the Applicant that fitted the definition of ‘torture’. The officer did not accept there were substantial grounds for believing the Applicant would be subjected to torture upon his return to Pakistan; there was no torture risk. 14.The officer rejected the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk). 15.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 (or BOR2 risk). However, the Applicant did not respond by the deadline of 11 October 2016 or thereafter. 16.In the Director’s further decision dated 3 November 2016, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). 17.The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk). TCAB/NCPO (the Board) 18.In his report, the Adjudicator set out the facts and the law clearly. She was alive to the issues of the Applicant’s case. She did not cast doubt on the facts alleged by the Applicant. However, even accepting those facts, she considered there were no risks as the Applicant claimed. The Adjudicator found state protection was possible in Pakistan, only that the Applicant did not report the matter to the police. Also, reasonable internal relocation alternatives were available to the Applicant. 19.The Adjudicator considered there was no evidence to show the Applicant faced a personal and real BOR2 risk; the Applicant had not suffered ill-treatment to a minimum level of severity so he did not face a genuine and substantial BOR3 risk. The Applicant's case was not on account of his race, religion, nationality, membership of a political group or political opinion; the alleged dispute was only a private one between him and SA. Thus, there was no persecution risk. Also, the scenario alleged by the Applicant was not resulted from instigation by the state or government officials; there was no issue of torture risk. 20.On 31 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. Court hearing 21.In Form 86, the Applicant requested a hearing. The hearing took place on 24 April 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court. 22.The Applicant said he was assisted by the Duty Lawyer Scheme up to the Director’s decision dated 5 October 2015. He knew the result. He was also aware of the Director’s subsequent request for additional facts for the consideration of BOR2 risk. However, he did not have further proof so he did not reply to the Director. He said he had provided all the information and materials relevant to his case to the Director and the Board for their consideration. 23.The Applicant said a friend helped him to prepare Form 86 and the 9-page affirmation for the current application for judicial review. 24.Finally, the Applicant said the decisions rendered against him were wrong. The decision-makers did not understand Pakistan in depth. The Applicant accused the decision-makers only derived their knowledge from the Internet. Grounds for judicial review 25.In support of his application, the Applicant submitted a 9-page affirmation [Folio 2] making allegations against both the Board and the Director. The Applicant had these complaints: –
Discussion 26.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 27.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] Ground (a): Lack of legal representation 28.The Applicant complained that he had not been provided with sufficient legal assistance. 29.In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Scheme in 2015. However, there was no more legal assistance available to him after the Director had made his first screening decision dated 5 October 2015. 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.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail. Ground (b): Lack of language assistance 31.The Applicant complained that he had not been given sufficient interpretation/translation assistance. 32.In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the 9-page affirmation for judicial review. The Applicant said he told his friend what to write down. He did not have to pay that friend. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for his claim. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails. Ground (c): No reasons given 33.The Applicant complained that the Director did not give reasons for his further decision dated 3 November 2016. 34.The Director’s further decision dated 3 November 2016 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 5 October 2015, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 3 November 2016 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2) upon his return to Pakistan. The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 5 October 2015. Ground (c) fails. Ground (d): Lack of fair hearing 35.The Applicant criticised the Director for not attending the appeal hearing before the Board on 17 January 2017. He deduced that the Director was not concerned about his case. There is no substance in this criticism. 36.The Applicant also criticised the Director for assuming he chose not to reply to the request for additional information and that the Director failed to arrange for a supplementary interview. However, the Applicant told me in court that he chose not to reply to the letter because he had no further proof to submit. He confirmed he had submitted all the information and materials of his claim to the Director and the Board. In the circumstance, the Applicant's complaint is without merits. 37.In court, the Applicant commented that the Director and the Adjudicator did not know enough of the real situation in Pakistan. He accused those decision-makers would only read from the Internet. The Applicant, however, could not be specific in his complaint. He failed to point out what country-of-origin information (“COI”) as considered by the Director and the Adjudicator was irrelevant or inaccurate. 38.The Applicant's complaints had no basis. On the contrary, having read the Director's decision plus further decision and the Board’s decision, I find both the Director and the Board had adhered to the high standards of fairness required of the Applicant's non-refoulement claim. Ground (d) fails. 39.In my judgement, 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 adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 40.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 11th 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
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 284/2017 Re: Paswan Shibu Lal, para 21. |
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