Khan Amjad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 1093/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Pakistan. He is now aged 39 (DOB: 3 March 1979).
Cites 2 cases
|
HCAL1093/2017 [2018] HKCFI 1892 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1093 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 national of Pakistan. He is now aged 39 (DOB: 3 March 1979). 2.The Applicant claimed that he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) [“PML(N)”] because they feared he would disclose the information of PML(N) to the Pakistan People’s Party (“PPP”). 3.The Applicant said he joined PML(N) in 1998. He held the post of General Secretary in the Prem Nagar area but he could not remember the exact period of his holding such post. He was responsible for organising gatherings for members. 4.PPP was a political party in opposition with PML(N). There were conflicts between both parties. 5.PPP had asked the Applicant to join them but he refused. The Applicant was then threatened by the PPP people. He went into hiding. 6.One day in 2006, the Applicant’s brother Arshad was abducted by some PPP people. They asked Arshad of the Applicant’s whereabouts. Arshad did not tell them. He was nonetheless released later. 7.On another day in 2006, someone fired gunshots at the Applicant’s house. The Applicant was not there. He was told by an informer that the PPP people did it because they wanted to kill him. 8.The Applicant did not report the matter to the police. He thought the police would act in the interests of PPP. 9.The Applicant feared for his life. He left Pakistan for China on 5 December 2006. On 11 December 2006, he entered Hong Kong as visitor. He overstayed and applied for refugee status with UNHCR in 2007. His application was refused in late 2007. In January 2009, the Applicant raised a torture claim with the Immigration Department. 10.While in Hong Kong, the Applicant was invited by his cousin Shahzad and a friend in Pakistan to join their party PPP. PPP promised the Applicant safety if he would join them. The Applicant therefore withdrew his torture claim in June 2010. He was repatriated to Pakistan on 13 August 2010. 11.The Applicant said he became the General Secretary of PPP in the Prem Nagar area. PML(N) found that out. Some PML(N) members then adducted him and gave him injections to induce memory loss. He had been imprisoned for 4 - 5 weeks before Shahzad managed to get him free. 12.The Applicant said he became a mentally disabled person between 2011 and 2013 due to memory loss. He believed the abductors tried to wipe away his memory in order to disable him from leaking PML(N) information to PPP. 13.The Applicant did not seek assistance from the police because PML(N) was the ruling party in his province. In 2013, PML(N) won the national election and became more powerful. 14.The Applicant feared the PML(N) people would rid him of his remaining memory. His friend Shahzad told him the PML(N) people were going to kill him. 15.The Applicant decided to leave Pakistan for Hong Kong again. On 29 May 2013, he left Pakistan for China. On 10 June 2013, he sneaked into Hong Kong by boat. 16.The Applicant claimed if he returned to Pakistan, the PML(N) people would kill him. He did not think the Pakistan authorities would protect him because they only safeguarded the interests of the ruling party. He also did not believe internal relocation was viable as the PML(N) people were able to locate him anywhere in Pakistan. 17.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) first refused the Applicant’s claim on 16 August 2016 with respect to these three applicable grounds: (i) risk of torture, [1] (ii) risk of persecution [2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk) [3]. 18.On 19 October 2016, the Applicant filed a late appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). 19.On 1 August 2017, the Director further refused the Applicant’s claim with respect to the fourth applicable ground: (iv) risk of violation of the right to life (BOR2 risk)[4]. The Applicant filed no appeal against the Director's further decision. 20.On 6 October 2017, the Board refused the Applicant’s late filing of appeal against the Director's decision dated 16 August 2016. 21.On 15 December 2017, the Applicant applied for leave for judicial review. Chronology of events 22.Things happened in this order: –
Respondents 23.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 24.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] 25.In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 15 December 2017. However, the Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its decision on 6 October 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 15 December 2017; the application against the Board's decision was made in time. Director of Immigration (the Director) 26.According to the Applicant, he was once a PML(N) cadre but only in a local area. The immigration officer did not believe the PML(N) people would kill the Applicant for fear he might leak information to PPP. Even on the Applicant's own account of events, the PML(N) people did not try to kill him in the 2011 abduction. They had not harassed him further in the next two years before he left Pakistan again in May 2013. The officer considered the Applicant’s alleged enemies had no real intention to harm or kill him. 27.The officer found the Applicant's complained situation was only a private dispute. It not instigated by the state. 28.The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing there were improvements and that citizens could seek recourse if the police were not performing their duties. The Applicant did not seek assistance from the police because he unjustifiably thought the police could not help. The officer accepted reasonable state protection was available to the Applicant. The officer also found internal relocation was viable. 29.In the Director's decision dated 16 August 2016, the officer did not accept there was any real torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds. 30.Later, the Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. The Applicant failed to respond by the deadline or thereafter. 31.On 1 August 2017, the officer decided 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 of life risk (BOR2 risk). TCAB/NCPO (the Board) 32.The deadline for appeal against the Director's decision (dated 16 August 2016) was 30 August 2016. The Applicant only filed his appeal on 19 October 2016. That was seven weeks after the deadline. 33.The Applicant gave reasons for his late filing in para. 5 of the notice of appeal (“NOA”) as follows: –
34.The Applicant provided no documentary proof to explain for his lateness. 35.The Adjudicator was of the view that a delay of seven weeks was both serious and significant. He found the Applicant had not given a good reason for his failure to submit NOA on time. The Adjudicator considered there were no special circumstances that would make it unjust to refuse the Applicant's late appeal. He thus rejected the Applicant's application for late filing of NOA. Grounds for judicial review 36.In his affirmation, the Applicant had these complaints: –
Court hearing 37.The hearing took place on 15 June 2018. An Urdu interpreter provided interpretation service in court. 38.The Applicant said he only knew a little English and needed language assistance. A friend helped him to prepare Form 86 and the affirmation. 39.The Applicant confirmed he had only filed one appeal. That was against the Director's decision. He said he had also tried to file an appeal again the Director's further decision (dated 1 August 2017) on the last day of the 14-day period but an unidentified officer told him to wait. Thus, there was only one appeal filed with the Board. 40.The Applicant complained the Director had not interviewed him. He also complained the interpreter was not interpreting properly for him and that the Duty Lawyer assisting him to fill out the statements always hurried him. Discussion 41.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 42.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] No appeal against the Director's further decision 43.On record, there was only one appeal. It was filed on 19 October 2016 against the Director's decision (dated 16 August 2016) on torture risk, persecution risk and BOR3 risk. 44.The Director rendered a further decision on 1 August 2017. It was on BOR2 risk. In paragraph 8 of that decision, the Director reminded the Applicant that the Board had not dealt with his earlier appeal (which was late), so he had to lodge a separate petition for the Director's further decision. 45.The Applicant claimed he had tried to file an appeal against the Director's further decision on the last day of the 14-day period but an unidentified officer told him to wait. This was not mentioned in his affirmation. Nor could the Applicant provide any proof that he had really tried to file an appeal against the Director's further decision only to be stopped by an unidentified officer. I do not accept such improvised and unproven accusation. The evidence revealed no appeal against the Director's further decision; the only appeal the Applicant had filed was in relation to the Director's decision and it was late by seven weeks. Late filing of appeal to the Board 46.S. 37ZS (1) of the Immigration Ordinance states:
47.S. 37ZT of the Immigration Ordinance, Cap 115 provides:
48.The Applicant's appeal against the Director’s decision was late by seven weeks. In paragraph 5 of his NOA, the Applicant only wrote “My complete story is narrated/explained wrongly. Whatever I said that was not stated/conveyed properly, due to tension of that, time elapsed/exceeded time limit given.” That was no reasonable explanation for his filing appeal late by seven weeks. 49.It was the Applicant’s duty to justify his late filing of appeal to the Board. He failed to do so. Even in the current application for leave for judicial review, the Applicant still failed to prove he had any reason to file his appeal against the Director's decision late. 50.The Adjudicator was entitled to view that a delay of seven weeks was both serious and significant; that the Applicant had not provided a good reason for his failure to submit NOA on time; and that there were no special circumstances which made it unjust for the Board to refuse the Applicant's late appeal in the circumstance. The Adjudicator’s refusing the Applicant to file the late appeal was not Wednesbury unreasonable. Lack of legal representation 51.The Applicant complained he had not been provided with legal assistance for the Director's assessment of BOR2 risk and for his appeal to the Board. He had legal assistance from the Duty Lawyer Service up to the Director's decision dated 16 August 2016. 52.There was no evidence that the Applicant had applied for further legal assistance from the Duty Lawyer Service after the Director's decision dated 16 August 2016. 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 53.The Applicant complained he had not been given sufficient interpretation/translation assistance. 54.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 to deal with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. His suspicion that the interpreter might not have interpreted/translated the basis of his claim properly was mere speculation. I am sure if there were any mistakes and impropriety, the Applicant with his friend’s assistance would have pointed them out already. Wrongful exercise of case management power 55.The Applicant complained the Director contradicted himself in the use of COI and wrongly decided on the issue of state protection. 56.On the issue of state protection, the Director had a balanced study of relevant COI.[8] He had considered COI for and against the Applicant. He accepted reasonable state protection was available to the Applicant in Pakistan (see paragraph 28 above). Such conclusion was not Wednesbury unreasonable. Lack of fair hearing 57.The Director again mentioned his language problem and insufficient legal representation. I have already dealt with both issues. 58.The Applicant complained the Adjudicator did not hear him. That was only because he filed his appeal against the Director's decision unjustifiably late and he did not file any appeal against the Director's further decision. 59.The Applicant also complained that “it was unfair to expect me to have received the letter, read, understood, and provided a proper reply. The Director of Immigration simply assumed that I chose not to reply to the letter and issued the Notice of Further Decision without the arrangement of any supplementary screening review.”[9] 60.The Applicant did not say clearly whether he received the Director's letter dated 7 July 2017 inviting him to submit additional facts for the consideration of BOR2 risk. In any event, the Applicant failed to show to this court that he really had something to submit on BOR2 risk. In the absence of his reply to the Director's letter, the Director was entitled to continue to consider his claim in relation to BOR2 risk. The Applicant failed dot show there was any need for the Director to hold further interview on BOR2 risk. The Applicant had not been deprived of any chance to present his case fully to the Director, whether he had received the said letter or not. 61.In court, the Applicant complained the Director had not interviewed him. He was actually absent from three scheduled interviews arranged by the Director: 5 January 2016; 12 February 2016 and 5 April 2016.[10] The Director duly proceeded to assess the Applicant's case based on the information in his written statements. The Applicant had no ground to complain he was not heard by the Director. 62.The Applicant further complained the interpreter was not interpreting properly for him and that the Duty Lawyer assisting him to fill out the statements always hurried him. These accusations were simply not supported by any evidence. 63.I have reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he 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 the Applicant’s complaints against the Director, 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 Director was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. 64.I have also reviewed the Adjudicator's decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he had proper basis for refusing the Applicant's late filing of NOA. His decision was not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Adjudicator. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 65.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 23rd 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] 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. [8] The Director's decision dated 16 August 2016, paras 17.5.1-17.6.5. [9] The Applicant's affirmation, para 11. [10] The Director's decision dated 16 August 2016, paras 6-7. |
Cases cited in this judgment