Iqbal Zahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 775/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Pakistan national. He is now aged 30 (DOB: 6 June 1988).
Cites 2 cases
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HCAL775/2017 [2018] HKCFI 1140 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 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 30 (DOB: 6 June 1988). 2.The Applicant claimed he would be harmed or killed by members of the Pakistan Muslim League (N) [PMLN]. 3.The Applicant said he had been supporting the Pakistan People party (“PPP”) since 2007. In the 2013, he participated actively in the election activities by rallying support for the local PPP candidate. One evening, there was altercation between supporters of PPP and the PMLN people. The Applicant was assaulted. One of the PMLN supporters threatened that he would not spare the Applicant. 4.Some days later, the Applicant was assaulted by 8-10 men on the road. One said they had already told the Applicant that they would not spare him. The Applicant fled. Some fired shots but missed the Applicant. 5.The Applicant did not report the matter to the police because he thought the assailants were from PMLN, which was the ruling party in the country. 6.On his friend’s advice, the Applicant left Pakistan on 5 June 2013. He first went to China and then entered Hong Kong illegally. 7.After he had come to Hong Kong, the Applicant learned from his parents in Pakistan that some people had been coming to enquire his whereabouts. 8.The Applicant said reporting to the Pakistan authorities would not help because the police would only protect rich people. He had no money to bribe the police. Furthermore, the Applicant believed the police would not go against PMLN. 9.The Applicant said he could not relocate himself to other parts of Pakistan because he lacked ties and means. 10.In the ensuing two-tier non-refoulement 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]. 11.On 17 October 2017, the Applicant applied for leave for judicial review. Chronology of events 12.Things happened in this order: –
Respondent/Interest party 13.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. 14.In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Adjudicator as respondent and the Director as interested party. 15.The Adjudicator did not act in her personal capacity. She represented the Board. As such, the Board is the putative respondent; the Director is the putative interested party. Director of Immigration (the Director) 16.In the Director’s decision dated 1 February 2016, the immigration officer did not find the Applicant’s claim credible. But even on the strength of his allegations, the officer found the Applicant’s claimed risk was a low-level one. He had not suffered ill-treatment to a minimum level of severity. The alleged situation was not caused by instigation of the state or officials or PMLN as a whole. There was no state consent or state acquiescence. On the other hand, reasonable state protection and internal relocation were available to the Applicant in Pakistan. 17.The officer did not accept the Applicant would face any risk that warranted non-refoulement protection. 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). 18.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 15 June 2017 or thereafter. 19.In the Director’s further decision dated 16 June 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 20.In her report, the Adjudicator set out the facts and the law clearly. She was alive to the issues of the Applicant’s case. 21.The Applicant told the Adjudicator that his family in Pakistan informed him the PMLN people no longer came to ask for his whereabouts. The Applicant said he was no longer a PPP supporter and he would not be supporting any party in Pakistan in the next election. He expressed his wish to return home though he was still a little scared. He asked the Adjudicator to give him a few months’ time and he would return to Pakistan voluntarily. 22.The Adjudicator found a number of inconsistencies between the Applicant’s oral evidence and his previous statements. She found the Applicant had exaggerated the ill-treatment he had experienced. The Adjudicator found the Applicant's evidence unreliable. 23.The Adjudicator was not satisfied the Applicant had any torture risk, persecution risk, BOR3 risk or BOR2 risk which warranted non-refoulement protection. On the other hand, she found there were reasonable state protection and internal relocation available to the Applicant in Pakistan. 24.On 4 August 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. Grounds of judicial review 25.The Applicant listed eight grounds of judicial review in his affirmation dated 17 October 2017 [Folio 2] under different headings of procedural impropriety, irrationality and procedural impropriety/unfairness. It would be more comprehensible to narrate his complaints as follows rather than to refer to the individual grounds. 26.The Applicant complained the Adjudicator failed to carry out sufficient research and enquiry into the conditions of Pakistan; failed to consider relevant and up-to-date country-of-origin information (“COI”); placed weight on irrelevant information; cherry-picked information; failed to evaluate and make a finding as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights; failed to analyse and assess whether state protection existed in Pakistan and whether there was extended state acquiescence; placed weight on irrelevant considerations and incorrect/ inaccurate facts; ignored facts and inferences favourable to the Applicant; failed to call for psychological and psychiatric reports; applied wrong standard of proof; rendered decisions Wednesbury unreasonable. 27.The Applicant also complained there was a lack of or insufficient legal representation. He complained that he was only given the appeal bundle and the Director’s skeleton submission a few days before the appeal hearing. As such, he did not have enough time to find people to help him to interpret/translate the English documents for him. The Applicant claimed he was confused in the appeal hearing. He accused the Adjudicator for failing to make appropriate arrangements regarding the provision of the hearing bundle to him. He also accused the Adjudicator of relying on outdated cases and information that was not officially recognised or simply hearsay. 28.Although the Applicant had not listed the Director as respondent in the current application, he complained the Director for not screening his case properly in relation to BOR2 risk. Court hearing 29.In Form 86, the Applicant requested a hearing. The hearing was scheduled on 8 May 2018. The Applicant was absent. The phone number he had left on record was called three times but no one answered. As such, the current application for leave for judicial review was processed on consideration of documents only. 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] 32.The Applicant has laid a barrage of complaints. Most of them are vague. I shall first deal with the more specific ones. 33.The Applicant complained the Director had not properly screened his claim on the issue of BOR2 risk. That is not true. The Director had invited the Applicant to submit additional facts for his consideration on BOR2 risk but the Applicant failed to do so. The Director then rendered his decision on 16 June 2017. That further decision should be read in conjunction with the Director's earlier decision dated 1 February 2016. The Director had fully considered the Applicant’s claim before giving his two decisions, which dealt with all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. 34.The Applicant complained that he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director's decision rendered on 1 February 2016. The Applicant failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim. 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] 35.The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights. It is for the Applicant to prove there was such a situation relevant to his claim. He failed to do so. The Adjudicator had already reasoned there was no state instigation or state acquiescence in Pakistan. On the other hand, she found reasonable state protection was available to the Applicant. 36.The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. 37.The Applicant further complained that he did not have sufficient time to prepare for the appeal before the Adjudicator. He also said he was confused during the hearing. The Applicant was not in court to give details of such complaint, which was not apparent at all from the records. On the contrary, the Adjudicator’s report shows the Applicant responded to the Adjudicator’s questions and said he had nothing new to submit.[7] I do not accept the Applicant had no time to prepare for the appeal or that he was confused during the appeal hearing. 38.The other complaints lacked specifics. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the complaints was substantiated. 39.In my judgement, the Adjudicator had proper basis for her findings and conclusions, which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. There is no substance in 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 Adjudicator’s report showed she was acquainted with the facts and applied the law correctly. She considered the Applicant's case carefully. She was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. 40.The Director is an interested party. I have also reviewed his decisions under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 39 above is also true of the Director. His decisions were not Wednesbury unreasonable. He had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 41.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 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. [7] The Adjudicator’s decision, paras 15-20. |
Cases cited in this judgment