Irshad Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 783/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Pakistan national. He is now aged 31 (DOB: 7 May 1987).
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HCAL783/2017 [2018] HKCFI 1064 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 783 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 31 (DOB: 7 May 1987). 2.The Applicant said he would be harmed in Pakistan by Mohammed Tufail (“Tufail”) of his own Mughal caste, Tufail’s sons and the Rana caste people. 3.The Applicant belonged to the Mughal caste. It was below the Rana caste in the social hierarchy. The Rana caste supported the Pakistan Muslim League (N) [PML(N)]. The Applicant was for the Pakistan People Party (“PPP”). He was the most educated person in his clan so he was responsible for convincing villagers to vote for PPP. The Rana caste people felt the Applicant would create trouble for them. The Applicant said the Rana caste people were gangsters. He had received verbal menaces which threatened to kidnap and kill him or to fabricate allegations against him. 4.The Applicant claimed the Rana caste parents were also jealous of him because he excelled their children in academic performance. Since 2002, the Applicant and his family had been receiving insults and taunts from some Rana caste members. 5.Tufail was of the Mughal caste but he had close relationship with the Rana caste people. In March 2008, Tufail’s daughter went missing. The Rana caste people wanted to avenge the Applicant’s refusal to switch from PPP to PML(N). They incited Tufail to falsely accuse the Applicant of being involved in the girl’s kidnap. The police arrested the Applicant and his two cousins. The three protested their innocence. 6.The case was brought to the court in 2008. The Applicant complained to the higher police authorities that he had been fabricated. However, the Rana caste people exerted political pressure to influence the police. The Applicant and his cousins were not believed. They were detained under a court order in the police station in November 2008. In the first two days, the Applicant and his cousins were not provided with food and water. Some officers degraded and abused them with foul language. They also used torture tactics to force the three to confess. The Applicant said Tufail and the Rana caste people had bribed and influenced the police. 7.After being detained for 14 days, the police took the Applicant and his cousins to the court again. The three denied the kidnap accusation. The court further remanded them. The three were detained in a cell where conditions were poor. 8.Later, the Applicant’s lawyer managed to get bail for the Applicant and his cousins from the court. However, the prosecutor appealed for revocation. The Applicant’s lawyer saw the injustice and advised the Applicant and his cousins to flee if bail was revoked. The court did revoke their bail. The Applicant and his cousins then escaped to Lahore. They managed to engage a lawyer to apply bail from the High Court. The High Court finally granted them permanent bail in April 2009. The Applicant knew they had to wait for a long time for further court hearing to come. He was not sure of the outcome. 9.The Applicant and his two cousins once tried to report the matter to the Chief Minister of Punjab but they could not meet that official, who belonged to PML(N). 10.The two cousins disappeared while on bail. The Applicant remained in Pakistan at first. He was confronted by some people belonging to the Rana caste including Tufail’s son. The son had a pistol. The Applicant managed to escape on that occasion. He learnt from his friends that the Rana caste people were plotting to harm him. The Applicant did not report the matter to the police. 11.In mid-2009, the Rana caste people and Tufail’s sons threatened the family of the Applicant's friend Sana. Sana could not house the Applicant in Lahore anymore. The Applicant knew the Rana caste people and Tufail’s sons wanted to harm or kill him. He left Lahore to live elsewhere. However, in the new living place he was still confronted by the Rana caste people. One threw acid at his face but only managed to burn his left hand and leave scars there. The Applicant was assaulted and the assailants subsequently fled. The Applicant was sent to the hospital. He did not report the matter to the police because he did not trust the authorities. 12.The Applicant finally decided to leave Pakistan. On 15 August 2009, he left the country. He intended to go to Korea via China. In China, someone told him that he should go to Hong Kong. On 20 August 2009, the Applicant entered Hong Kong illegally from China. 13.The Applicant knew that the police in Pakistan had been looking for him. He did not think internal relocation was possible because the police would track him down for the false kidnap case and would torture him. The Rana caste people were also able to locate him due to their powerful political connections. The Applicant did not believe the Pakistan authorities could provide him protection or justice because his enemies were related to politicians who could influence the police, lawyers and judges. 14.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]. 15.On 19 October 2017, the Applicant applied for leave for judicial review. Chronology of events 16.Things happened in this order: –
Respondent/Interested Party 17.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. 18.In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as respondent and the Director as interested party. Director of Immigration (the Director) 19.In the Director’s decision dated 27 May 2015, the immigration officer found the risk of harm from the Applicant’s enemies was low. The officer found there were implausible features in the Applicant’s claim. He did not accept there was any state instigation or the alleged enemies acted with state consent or acquiescence. The officer did not find the Applicant had been inflicted with ill-treatment to a minimum level of severity. On the other hand, he was satisfied reasonable state protection and internal relocation were available to the Applicant in Pakistan. 20.The officer did not accept the Applicant had a real BOR3 risk or well-founded persecution risk or any torture risk. He refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk). 21.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 of 1 June 2017 or thereafter. 22.In the Director’s further decision dated 9 June 2017, 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). The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 23.In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case. He found there were implausible and illogical features in the Applicant’s claim. He found there was no state instigation. Nor was there state acquiescence in the Applicant's case. There was no real torture risk, BOR2 risk, BOR3 risk or persecution risk. The Applicant had not made out a case that warranted non-refoulement protection under any of those four applicable grounds. On the other hand, the Adjudicator was satisfied that reasonable state protection and internal relocation were available to the Applicant in Pakistan. 24.On 25 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. Grounds for judicial review 25.In support of his application, the Applicant submitted an affirmation dated 19 October 2017 and exhibits “A1” – “A5”. In his affirmation, the Applicant listed these complaints: –
Court hearing 26.In Form 86, the Applicant requested a hearing. The hearing took place on 8 May 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court. 27.The Applicant said he had studied up to Year One in a university in Pakistan. He studied business. He learnt English in secondary school. In the university, the subjects were taught in English except for Islamic studies. The Applicant said he had an 80% understanding of the English language. Concerning reading, he said he had no problem with 90% of the books and documents. The Applicant said he had someone to assist him to prepare Form 86 and the affirmation for the current application for leave for judicial review. He confirmed all the grounds of application were in the affirmation. He did not have anything to add. 28.The Applicant said he had been living at the same address since July 2016 till now. He was able to receive correspondence sent to that address by the Court but he never received anything from the Director and the Board. He said he knew when to attend the Board’s appeal only because someone called him by phone. 29.The Applicant confirmed that he had submitted all information and materials to the Director and the Board for their consideration of his non-refoulement claim. He complained the Director and the Board failed to consider his case fully and properly. Discussion 30.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 31.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’.[5] Ground (a): Lack of legal representation 32.The Applicant complained that he had not been provided with sufficient legal assistance. 33.In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Service in 2015. However, there was no more legal assistance available to him after the Director had made his decision dated 27 May 2015. 34.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.[6] 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). Ground (b): Lack of language assistance 35.The Applicant complained that he had not been given sufficient interpretation/translation assistance. 36.In court, the Applicant admitted he had studied up to Year One in the university in business. He could grasp much of the English language though not mastering it. In the current application for leave for judicial review, he had a friend to help him to prepare Form 86 and the affirmation. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal with documents for him. 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): Wrongful exercise of case management power 37.The Applicant complained that the Adjudicator and the Director unreasonably found against him. I have reviewed the decisions of the Adjudicator and the Director under ‘rigorous examination and anxious scrutiny’. I find they had carefully considered the evidence and information relevant to the Applicant’s claim. They were entitled to make those findings, conclusions and decisions which were not Wednesbury unreasonable. 38.The Applicant said he had never received the Director's letter dated 18 May 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He felt aggrieved for not having an opportunity to make submission on the BOR2 issue. He complained there was no further screening interview. He also complained the Director failed to provide explanation of his decision on BOR2 risk. 39.In court, the Applicant confirmed he had been living in Rome 2, Flat A. 6/F, Golden Crown Court, 66-70 Nathan Road since July 2016. It is baffling to hear that he was able to receive correspondence from this court but never received anything from the Director or the Board at the same address. I do not believe he did not receive the Director's letter dated 18 May 2017. 40.In any event, the Applicant confirmed in court that he had submitted all information and materials to the Director and the Board for their consideration of his non-refoulement claim. That means even if the Applicant’s claim of missed post was true, he was not prejudiced to any extent because he had already submitted all to the Director and the Board for their consideration. 41.The Applicant had no more to submit to the Director and the Board in relation to the BOR2 issue. There was no need for the Director and the Board to hold further hearing. 42.The Applicant also complained that the Director did not give reasons for his decision on BOR2 risk. 43.The Director’s further decision dated 9 June 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 27 May 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 9 June 2017 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). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 27 May 2015. Ground (c) fails. Ground (d): Lack of fair hearing 44.The Applicant criticised the Director for not attending the appeal hearing before the Board on 4 October 2016. He deduced that the Director was not concerned about his case. 45.I cannot see how the Applicant's claim had been prejudiced by the fact that the Director was excused from the appeal hearing before the Board. There is no substance in this criticism. 46.The Applicant further complained he was not given sufficient opportunities to make submission. 47.There is no evidence that the Applicant was prevented from making any submission as he wished. Having reviewed the Director's decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’, I am satisfied that the Applicant had been given sufficient opportunities to state and elaborate his case. The Director and the Adjudicator had adhered to the high standards of fairness throughout. The Applicant’s complaints had no basis. Ground (d) fails. 48.In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Adjudicator, who 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 report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. The Adjudicator considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. 49.The Director is an interested party in the current application. I have also reviewed the Director's reports under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in para. 48 above is also true of the Director. I am satisfied that the Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 50.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 21st 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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [6] CACV 284/2017 Re: Paswan Shibu Lal, para 21. |
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