Ellahi Rashid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 680/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Pakistan national. He is now aged 37 (DOB: 30 August 1980).
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HCAL680/2017 [2018] HKCFI 1323 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 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 37 (DOB: 30 August 1980). 2.The Applicant had previously come to Hong Kong illegally twice. This is the third time he entered Hong Kong illegally. He claimed he would be harmed or killed by Nasir and Younis (“N & Y”). N&Y belonged to the ruling party, the Pakistan Muslim League (Nawaz) [“PML(N)”]. The Applicant was a supporter of the Pakistan People’s Party (“PPP”). 3.The Applicant had supported PPP since 2002. He actively invited people to join PPP. His uncle Muhammad Riaz was the party’s chairman in his district. 4.One day in 2006, N& Y approached the Applicant. They asked him to quit PPP to join PML(N). They also asked him to stop inviting people to join PPP. The Applicant refused. He continued to perform for PPP. Later, he was assaulted by N&Y. The Applicant did not report the matter to the police because a councillor called Mohammad Aslam (“Aslam”) asked him not to. 5.The Applicant believed he was targeted by N & Y because if he joined PML(N), many people would follow him. 6.Two months later, N&Y intercepted the Applicant again. N pointed a gun at the Applicant. He also fired at the Applicant's door to threaten him not to support PPP or to invite people to join PPP. The Applicant verbally promised but actually he would not stop performing for PPP. 7.The Applicant reported the matter to the police this time but they did not listen or write any report. The Applicant alleged the police showed favour to PML(N), which was the ruling party. 8.Aslam advised the Applicant to seek non-refoulement protection in Hong Kong. In mid-2006, the Applicant left Pakistan for China by air. He stayed in China for 3 to 4 days before coming to Hong Kong illegally by boat. He made a refugee application. However, he withdrew that application 3 to 4 months later because his uncle had talked to N&Y, who now agreed not to bother him anymore. The Applicant was repatriated to Pakistan in the same year of 2006. 9.Back in Pakistan, the Applicant continued to work for PPP. His uncle died in 2009 and was succeeded by his son Naeem. The Applicant helped Naeem to recruit people to join PPP. He also helped PPP in the election campaign. 10.The Applicant said N&Y resumed bothering him. They threatened to kill him. The Applicant did not report the matter to the police because he felt the police would not listen to him. He continued to help Naeem and PPP. 11.In June or July 2009, some PML(N) people including N&Y stopped the Applicant on the road. They beat him. The Applicant reported this incident to the police. However, the police did not register his case. They asked the Applicant to leave. They even told him not to make troubles with N&Y. The Applicant thought the police would not do anything for him. He did not report the matter to higher authorities. 12.Another two to three months later, the Applicant was again assaulted by N&Y and their associates. N used a pistol to hit him. The Applicant did not report the matter to the police. 13.The Applicant did not think the Pakistan police would protect him. He also considered internal relocation was not viable as his enemies could find him sooner or later. 14.On 28 September 2009, the Applicant left Pakistan again for China. Five days later, he entered Hong Kong illegally by boat. He raised a torture claim in October 2009. He felt safe in Hong Kong and did not want to go back to Pakistan despite PPP became the ruling party in late 2009. 15.In October 2013, PML(N) became the ruling party again. Yet, the Applicant withdrew his torture claim saying Naeem had talked to N & Y. N & Y agreed not to trouble the Applicant anymore if the latter would not participate in political activities in Pakistan. A week later, Naeem told the Applicant that the problem had not been settled. The Applicant wrote to the Immigration Department to cancel his withdrawal on 4 November 2013. However, Naeem confirmed to the Applicant in January 2014 that N&Y really would not bother him anymore. The Applicant was then willing to be repatriated to Pakistan on 24 February 2014. 16.Back in Pakistan, the Applicant continued to work for PPP. In October 2015, N&Y and their associates confronted the Applicant and hit him. They did not say anything. The Applicant reported the matter to the police. The police took a statement from him and said they would arrest the culprits. However, no one was arrested. The Applicant thought the police were not willing to help him as his enemies were from the ruling party. 17.Later, N&Y confronted the Applicant again. They threatened they would shoot him. 18.The Applicant did not know when N&Y would execute their death threat. He did not seek help from the police anymore. The Applicant thought internal relocation was not possible as his enemies could locate him. He felt he must leave Pakistan again. 19.On 1 November 2015, the Applicant left Pakistan for China for the third time. On 6 November 2015, he entered Hong Kong illegally for the third time and applied for non-refoulement protection. 20.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]. 21.On 26 September 2017, the Applicant applied for leave for judicial review. Chronology of events 22.Things happened in this order: –
Respondents 23.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. 24.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. The Board is the first putative respondent; the Director is the second putative respondent. Director of Immigration (the Director) 25.In the Director’s decision dated 2 June 2016, the immigration officer did not make specific finding on the credibility of the Applicant. However, even on the strength of the Applicant’s allegations the officer assessed the level of risk of harm from the Applicant's alleged enemies was low and his feared risk was unlikely to materialise. 26.The officer was aware there were reports of police corruption in Pakistan. Yet, there were also reports showing the Pakistan government had carried out their duties to protect their citizens. The officer did not accept reasonable state protection was not available to the Applicant. He also considered reasonable internal relocation was viable in the Applicant's case. 27.The officer did not accept the Applicant would face real torture risk, persecution risk and BOR3 risk. He refused the Applicant’s claim with respect to those three applicable grounds. 28.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. 29.In the Director’s further decision dated 31 March 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) 30.Although the Adjudicator found the Applicant had given a largely consistent account of his claim, she had reservation of his credibility. The Applicant claimed he had active involvement in PPP activities. Yet, his knowledge of PPP was rudimentary. The Adjudicator did not find it plausible that the Applicant should remain a subject of interest to his alleged enemies after he had been out of Pakistan for many years. 31.The Adjudicator gave the Applicant the benefit of doubt and accepted his account of happenings. However, the Applicant had admitted his problem was not from PML(N) but from N&Y, so the risk of his enemies’ finding him in his relocation in Pakistan was very low. The Adjudicator considered the Applicant was able to find a place of sufficient safety for relocation without undue hardship in a country of Pakistan’s size and diversity. She considered that internal relocation was viable in the Applicant's case. 32.Since reasonable internal relocation was viable, the Adjudicator did not consider the Applicant was really at risk that needed non-refoulement protection. She refused the Applicant’s claim with respect to all the four applicable grounds. Grounds for judicial review 33.In his affirmation, the Applicant had these complaints: –
Court hearing 34.In Form 86, the Applicant requested a hearing. The hearing was scheduled on 26 April 2018. The Applicant was absent. 35.On 7 May 2018, the Applicant wrote to the court to say he had not received the notice of hearing. Another hearing was scheduled on 4 June 2018. The Applicant was present. A Punjabi interpreter provided interpretation service in court. 36.The Applicant said he knew a little English. He had a friend who was an assistant to a lawyer. That friend helped him to prepare Form 86 and the affirmation. 37.The Applicant said he probably had not received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. Nevertheless, he confirmed he had submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim. 38.The Applicant filed the current application for leave for judicial review on 26 September 2017 while the Board’s decision was dated 21 June 2017. Counting three months from then, the Applicant was late in his current application by 6 days. The Applicant admitted he knew the limitation period was three months. He explained he could not find the right person to assist him to file the current application and he also forgot to file the application on time. Discussion 39.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 40.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] Late application for leave for judicial review 41.Order 53, rule 4 of the Rules of the High Court states: –
42.In the present case, the Director's decision, the Director’s further decision and the Board’s decision were respectively dated 2 June 2016, 31 March 2017 and 21 June 2017. The Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its decision on 21 June 2017. Therefore, the relevant date to be considered as when grounds for the application for judicial review arose should be 21 June 2017. 43.The Applicant only took out the current application on 26 September 2018. Given there was a grace period of three months for the filing, the current application was in fact 6 days late. Legal principles for extending time 44.In AW v Director of Immigration[6], the Court of Appeal stated: –
45.The list of factors is not exhaustive; the exercise of consideration is “multi-faceted”. The overriding principle is of course one of fairness and in non-refoulement cases high standards of fairness must be achieved. 46.In court, the Applicant admitted he knew the limitation period was three months. He explained that he could not find the right person to assist him to file the current application and he also forgot to file the application on time. That was no good excuse. While the provisions of Order 53 rule 4(1) and section 21K (6) should not be applied in a technical manner, a disciplined approach to consider applications for judicial review out of time ought to be taken, otherwise public administration would be thrown into uncertainty and chaos. 47.The delay in the present case was only for 6 days but it was still an undue delay. There was no justification for the Applicant's lateness in his late application, which has no merits at all (see paragraphs 48-58 below). His application for leave for judicial review against the Director's decisions and the Board’s decision should be disallowed. Merits Lack of legal representation 48.The Applicant complained that he had not been provided with sufficient legal assistance after the Director's decision dated 2 June 2016. 49.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 only in the later stages of the screening process. Lack of language assistance 50.The Applicant complained that he had not been given sufficient interpretation/translation assistance. 51.In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English 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 English documents. 52.The Applicant complained he was not given a translation of his Non-refoulement Claim Form (NCF) because the Duty Lawyer Service wanted to save costs. If that was really the case, the Applicant could only be dissatisfied with the Service. However, the Duty Lawyer Service was not named by the Applicant as a respondent or an interested party. Furthermore, the Applicant only worried there might be mistranslation or misinterpretation. Such speculation was, however, not well-founded at all. No reasons given by the Director in his further decision dated 31 March 2017 53.The Applicant complained that the Director did not give reasons for his further decision dated 31 March 2017. 54.The Director’s further decision dated 31 March 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 2 June 2016, 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 31 March 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 2 June 2016. Lack of fair hearing 55.The Applicant again complained about lack of legal and language assistance. Those issues have just been dealt with. 56.The Applicant criticised the Director for assuming he chose not to reply to the letter inviting him to submit additional facts relating to BOR2 risk. In court, the Applicant said he probably had not received that letter. However, he confirmed he had submitted all he had to the Director and the Adjudicator. Thus, he was not deprived of any chance to present his case fully. There is nothing to complain about. 57.The Applicant criticised the Director for not attending the appeal hearing before the Adjudicator on 4 May 2017. I cannot see how the Director's absence would prejudice the Applicant's appeal before the Adjudicator. 58.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. The Director and the Adjudicator 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. None of the Applicant's complaints can stand. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 59.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 22nd day of June 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 63/2015 [7] CACV 284/2017 Re: Paswan Shibu Lal, para 21. |
Cases cited in this judgment