Shaikh Abdul Samad v. Director of Immigration and Another
Read the full judgment text of HCAL 359/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Pakistan. He is now aged 35 (DOB: 21 January 1983).
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HCAL359/2018 [2018] HKCFI 1778 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 359 of 2018 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 national of Pakistan. He is now aged 35 (DOB: 21 January 1983). 2.The Applicant claimed that he would be harmed or killed by Saghir and his group of gangsters because he refused to join their unlawful party, the Muttahida Qaumi Movement (“MQM”). Saghir was one of the leaders in MQM. 3.In 2002, some MQM people invited the Applicant to join them but he refused. Those people then threatened the Applicant. The threats became more often and intensive in 2007/2008. 4.In late 2008, Saghir and his associates came to the Applicant’s shop. They told the Applicant that if he refused to join them, he could not do business and they would harm him too. They left after uttering such threats. 5.Two to three weeks later, Saghir and his people came to make the same demand. The Applicant again refused to join them. Those people then assaulted the Applicant and vandalized his shop. They took money and valuable properties from the shop. 6.The Applicant told his experience to a local councillor. The councillor advised the Applicant to ignore the matter because MQM was the ruling party in the region. The councillor said the police would not offer assistance to the Applicant as they were submissive to MQM. The Applicant, therefore, did not seek police assistance. 7.In MQM, there was a gangster called Nadeem. In early 2009, Nadeem and his people came to the Applicant’s shop to force the Applicant to join MQM. The Applicant refused and was beaten up. Those people fired shots into the air and even pointed a pistol at the Applicant’s head threatening to kill him. They repeated that the Applicant would be killed if he did not join MQM. They took all the valuable properties from the shop before they left. 8.The Applicant went to the police this time but the police refused to accept his complaint. They asked him to report the matter to the police station of another area. The Applicant went to the other police station. Yet, the police there also refused to handle his complaint because they considered MQM was a very dangerous party. The Applicant went back to the councillor for advice. The councillor told him to resettle elsewhere in Pakistan. 9.The Applicant dodged his enemies for a few months in his hometown before he moved to another city. 10.On the advice of a friend, the Applicant engaged a lawyer to file lawsuits against MQM. The MQM people were aware of the Applicant's action and sent people searching for him. Saghir and Nadeem made threatening phone calls to the Applicant. They also threatened the Applicant’s lawyer that he should not assist the Applicant. They forced the lawyer to disclose the Applicant’s whereabouts. The lawyer refused to divulge but he did stop acting for the Applicant in the legal proceedings against MQM. 11.The Applicant believed his enemies would track him down sooner or later. He started to make arrangement to leave the country. On 10 January 2010, he left Pakistan for China. He later entered Hong Kong illegally on 6 March 2010. The next day, he was arrested by the police. He lodged a non-refoulement claim on 9 March 2010. 12.The Applicant learnt from his neighbours in Pakistan that the MQM people had been searching for him. Those people threatened to take action against him should he return to Pakistan. MQM had also set up an office near the Applicant’s home. The Applicant felt his situation was very vulnerable. He said his enemies were powerful. The Pakistan government could not help him. 13.The Applicant claimed he had no means to live elsewhere in Pakistan so internal relocation was not viable. 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 6 March 2018, the Applicant applied for leave for judicial review. Chronology of events 16.Things happened in this order: –
Respondents 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 complaint 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 Director and the Adjudicator as respondents. 19.The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent. Director of Immigration (the Director) 20.In the Director’s decision dated 13 May 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant's own account of events the officer did not find the Applicant had been inflicted with ill-treatment to a minimum level of severity. The Applicant’s perceived risk was localised. The officer also found his alleged risk was not instigated or consented by the state or officials. There was no evidence of state acquiescence. 21.The officer was aware there were reports of political violence, human rights abuse and police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the government had taken steps to monitor the police and to improve the effectiveness. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable. 22.The officer did not accept the Applicant would face torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds. 23.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. 24.In the Director’s further decision dated 10 March 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the 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) 25.The Adjudicator found there were number of implausible, inconsistent and exaggerated features in the Applicant’s allegations. He found the Applicant had fabricated his claim. 26.The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds. Grounds for judicial review 27.In Form 86, the Applicant complained the Director failed to properly consider state protection and the extended concept of state acquiescence; failed to properly consider COI including police corruption and ineffectiveness in Pakistan; failed to make sufficient enquiry; failed to advise the Applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding on the seriousness of the injuries suffered by the Applicant. 28.The Applicant accused the Adjudicator failed to attain high standards of fairness required; failed to appreciate the Applicant was not legally represented; failed to notice the errors committed by the Director and erred in a similar way as the Director did. Court hearing 29.In Form 86, the Applicant requested a hearing. The hearing took place on 4 June 2018 and 7 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court. 30.The Applicant admitted he got the Board’s decision in June or July 2017. When asked why he filed the application for leave for judicial review late in March 2018, the Applicant said he did not know there was a three-month limitation. He did not know he could file such application until his friends told him in early March 2018. He immediately processed the application. A friend helped him to prepare the documents. The Applicant confirmed all the grounds of judicial review were in the documents. 31.The Applicant also said he had a tumour in his spine. He felt numb on the right side and could not sleep well without taking medication. He could not stand or walk long and had difficulty in writing too. However, the Applicant confirmed he had not been immobilised or hospitalised. He could go to the mosque to pray once a week and went out to buy food once a week. He could also go to report to the Immigration Department every 14 days. 32.The Applicant confirmed he had submitted all to the Director and the Board for their consideration of his non-refoulement claim. Discussion 33.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 34.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] Late application for leave for judicial review 35.Order 53, rule 4 of the Rules of the High Court states: –
36.In the present case, the Director's decision, the Director’s further decision and the Board’s decision were respectively dated 13 May 2016, 10 March 2017 and 9 June 2017. 37.The Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its appeal decision on 9 June 2017. Therefore, the relevant date to be considered as when grounds for the application first arose against the Director’s two decisions and the Board’s decision should all be 9 June 2017. 38.The Applicant only took out the current application on 6 March 2018. That was almost nine months after 9 June 2017. Given there was a grace period of three months for the filing, the current application was in fact almost 6 months late. Legal principles for extending time 39.In CACV 63/2015 AW v Director of Immigration, the Court of Appeal stated:
40.The Applicant admitted he received the Adjudicator’s decision in June or July 2017. He did not know he could apply for judicial review and he did not know he had to do it within three months. The Applicant claimed he only knew from his friends in early March 2018 that he could apply for judicial review and he immediately processed it. Ignorance, however, was not a good reason for an undue delay of nearly six months. 41.The Applicant also said he had been suffering from a giant cell tumour in the C2 section of his spinal cord. He felt numb in his head, neck and the right side of his body. However, he was not hospitalised between June 2017 and March 2018. Nor was he immobilized. He could still go to the Mosque once a week. He also went out to buy food once a week. He could also go to report to the Immigration Department every 14 days. Therefore, the Applicant's ill-health could not mitigate his delay. 42.There was no justification for the Applicant's substantial undue delay. His application for leave for judicial review against the Director's decision plus further decision and the Board’s decision was also without merits (see paragraph 43 below). Therefore, his late application should not be allowed. Merits 43.The Applicant's complaints against the Director and the Adjudicator are vague. I have reviewed the Director's decisions 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. 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 had 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 achieved the high standards of fairness required of the Applicant’s non-refoulement. Conclusion 44.The Applicant's complaints are not reasonably arguable against either the Director or the Board. He has no reasonable prospects of success in the sought judicial review. His application is also late by almost six months without justification. I therefore refuse to grant him leave for the review. Dated 2nd day of August 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. |
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