Aslam Mian Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 105/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Pakistan. He is now aged 48 (DOB: 16 September 1969).
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HCAL105/2018 [2018] HKCFI 1992 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 105 of 2018 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 48 (DOB: 16 September 1969). 2.The Applicant claimed he would be killed by Karamdad Wala (“KW”), Bashir Ahmed (“BA”) and Khadam Hussain Dhilu (“KHD”). Those men forced him to join the Pakistan Muslim League (N) [“PML(N)”]. The Applicant refused because he had already joined the Pakistan People’s Party (“PPP”) since 2008 and was an active member. He had gained support from his villagers. The Applicant said PML(N) therefore targeted him. 3.The Applicant said that in 2012, KW instructed BA to ask him to join PML(N). He refused. BA then threatened to frame him up with false accusations. 4.Two months later, KHD confronted the Applicant with some men armed with guns. KHD belonged to an extremist group called Sipah-e-Sahaba Pakistan (“SSP”). He was sent by KW to threaten the Applicant to give up the local council election. The Applicant asked for time to consider the matter. KHD and his men then left. 5.A week later, the Applicant was assaulted by BA and some armed men in the street. He was injured. Some villagers came to intervene. The assailants then left. The Applicant believed he was attacked because of his support for PPP. He reported the matter to the police. The police merely registered his complaint and took no action. 6.A month later, the Applicant was abducted by the SSP people including KHD. They tortured him. The Applicant pretended to agree to join PML(N). He was then released. 7.The Applicant reported the matter to the police. A police officer rebuked him for making report against KHD and KW. Even though the Applicant was later accompanied by a local PPP leader to go to the police station to seek assistance, the police still refused to register his complaint. The Applicant believed the police were influenced by PML(N). He did not make further report to higher authorities as he thought they were also influenced by KW, who was a member of the Provincial Assembly. 8.One odd months later, the Applicant’s enemies fired gunshots at his house, causing damage to the gate and walls. No one was injured. This time, the Applicant did not make any report to the police. He fled to another place to stay with his friends. 9.The Applicant finally left Pakistan on 5 October 2012. He went to Malaysia first and then to Macau. He actually wanted to go to Canada. His travel agent finally gave him a fake British passport to enter Hong Kong on 21 October 2012 as visitor. In fact, the Applicant had been to Hong Kong several times before (see paras 10-13 below). 10.In October 1992, the Applicant used the name Mohammad Aslam (ID 1) to enter Hong Kong as visitor. He was permitted to stay until 14 January 1993. He overstayed and surrendered to the Immigration Department on 15 April 1993. He was repatriated to Pakistan on 24 May 1993. 11.A few months later, on 15 September 1993 the Applicant came to Hong Kong again using another name Muhammad Aslam (ID 2). His travel document was later found to have been unlawfully altered. He was arrested on 23 September 1993 and repatriated to Pakistan for the second time on 5 March 1994. 12.Almost two years later, on 28 February 1996 the Applicant was arrested by the police in Hong Kong again. He used back the name Mohammad Aslam (ID 1). On 27 July 1996, he was repatriated to Pakistan for the third time. 13.Six years later, on 8 August 2002 the Applicant came to Hong Kong using another name Chaudhry Aslam Muhammad (ID 3). On 25 March 2003, he left Hong Kong for China. 14.This time, the Applicant came to Hong Kong on 21 October 2012 in the name of Aslam Mian Muhammad (ID 4). He then travelled among Hong Kong, China and Macau. A year later, his visa expired. He left Hong Kong for Korea on 17 October 2013 but was repatriated to Hong Kong on the next day. The Applicant was refused entry by an immigration officer but he raised a torture claim on 24 October 2013. He withdrew the torture claim later and raised a CIDTP claim on 28 October 2013. 15.The Applicant claimed the Pakistan authorities would not protect him. He also said internal relocation was not viable because his enemies were powerful and could locate him easily in the country. 16.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]. 17.On 22 January 2018, the Applicant applied for leave for judicial review. Chronology of events 18.Things happened in this order: –
Respondent/Interested party 19.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. 20.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party. Director of Immigration (the Director) 21.In the Director’s decision dated 7 December 2015, the immigration officer did not make specific findings on the credibility of the Applicant. However, even on the Applicant's 's own account of events the officer considered the level of risk of harm against the Applicant was low and the alleged enemies did not have a real intention to harm him. 22.The officer noted the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The complained situation was not instigated, consented or acquiesced by the Pakistan government or officials or persons acting in any official capacity. 23.The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the Pakistan government had taken practical steps to improve the effectiveness of the police. There were also alternative avenues to seek justice in the country. The officer found reasonable state protection and internal relocation were available to the Applicant. 24.The officer did not accept the Applicant faced any torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds. 25.Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of life risk (BOR2 risk). The Applicant sent a letter dated 27 September 2016 as notification of non-refoulement application under BOR2 but it contained no additional information. 26.In the Director’s further decision dated 1 November 2016, the officer considered the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real BOR2 risk. He refused the Applicant’s claim with respect to the fourth ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 27.Before the Adjudicator, the Applicant chose not to answer any questions. On the evidence before him, the Adjudicator considered the Applicant's claim was vague and mere assertion. He did not find the Applicant reliable. 28.Even on the Applicant’s own account of events, the Adjudicator considered the complained situation was not instigated by the Pakistan government or officials. There was no evidence of state acquiescence or consent. The Applicant also had not suffered any ill-treatment to a minimum level of severity. 29.The Adjudicator had studied relevant COI. He was satisfied reasonable state protection and internal relocation were available to the Applicant. 30.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds. Grounds for judicial review 31.In Form 86 and his affirmation, the Applicant complained the Adjudicator rendered unreasonable or irrational decisions; acted in a procedurally unfair manner; failed to meet the greater care and duty owed to a self-represented claimant; relied on information not officially recognised or simply hearsay or outdated cases. 32.The Applicant complained the appeal bundle was served on him only seven days before the Board hearing. He was unrepresented and not good in English. He had no means to find an interpreter to help him to understand the English documents. He said he was thus confused as to what happened. The Applicant accused the Board failed to make appropriate arrangements in relation to the hearing bundle. Court hearing 33.In Form 86, the Applicant requested a hearing. The hearing took place on 20 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court. 34.The Applicant said he knew very little English. A friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents. 35.The Applicant filed the current application for leave for judicial review on 22 January 2018, more than 11 months after the Adjudicator rendered his decision on 17 February 2017. The Applicant said he did not know how to apply for judicial review. He was also unaware that he had to make such application within three months from the Adjudicator’s decision. The Applicant said he had tried to settle his problem in Pakistan but failed. Then, he sought judicial review. 36.The Applicant said he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. He, however, complained that he had not been granted time to get further proofs which were some medical records and related documents. Discussion 37.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 38.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 39.Order 53, rule 4 of the Rules of the High Court states: –
40.The Adjudicator rendered his decision on 17 February 2017. The Applicant should apply for leave for judicial review within three months from that date. However, he only filed the current application eleven months later on 22 January 2018. Given there was a grace period of three months for the filing, the application was in fact late by more than 8 months. Legal principles of extending time 41.In AW v Director of Immigration[6], the Court of Appeal stated: -
The list of factors is not exhaustive; the consideration is “multi-faceted”; the overriding principle is one of fairness. 42.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 applications for judicial review out of time ought to be taken otherwise public administration may be thrown into chaos and uncertainty. The Applicant explained he did not know the time limit and that he had waited for his problem in Pakistan to settle were no good excuses. The delay by more than 8 months (already excluding the three-month grace period for filing) was undue and substantial. There was no justification. There were also no merits in the Applicant's application (see paras 43-51 below). His late application for leave for judicial review should not be allowed. Merits 43.The Applicant complained the Director only served the appeal bundle on him around 13 January 2017. Most of the documents were in English. He did not have sufficient time to find an interpreter to assist him to deal with the documents. He was thus confused of what was happening. 44.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[7] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[8], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. 45.In the present case, the Director served the appeal bundle on the Applicant 7 calendar days (or 6 working days) prior to the appeal hearing. The papers were served on the Applicant in time. 46.The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening. The Applicant's case was not complicated. There was no evidence to show the appeal bundle was difficult or voluminous. 47.A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. 48.In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure he had access to language assistance at all material times. The Applicant had exaggerated his problem of understanding and handling English documents. 49.The Applicant complained in court that he had told the Adjudicator and the Director he needed time to get certain proofs. There is really no evidence of such application. The Applicant only vaguely told this court those proofs were some medical records and related documents. He failed to explain why he could not have got hold of those documents in the several years’ time after he had lodged his non-refoulement claim as early as October 2013. 50.There are other vague complaints made by the Applicant. I have reviewed the Adjudicator's decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision 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 Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 51.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 3rd day of September 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] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. [8] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme. |
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