Case Document

100%Judiciary

HCAL827/2018

[2019] HKCFI 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 827 of 2018

BETWEEN

	Ali Hasnain	Applicant
	and
	The Director of Immigration	1^st Putative Respondent
	The Adjudicator of the Non-refoulement Claims Petition Office	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

consideration of documents only

consideration of documents and oral submission by the Applicant in open court

Order by Deputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.The Applicant is a national of Pakistan. He is now aged 23 (DOB: 8 March 1996).

2.The Applicant claimed he would be harmed or killed by people of the Pakistan Muslim League (Nawaz) [“PML(N)”] because he supported the Pakistan People’s Party (“PPP”). [PML(N) was the ruling party in Pakistan at the material time; PPP was an opposition party.]

3.The Applicant said he was an active supporter of PPP. In mid-2013, there was a general election. The local head of PML(N) was Kharal. He went to the Applicant’s village to canvass support for PML(N). Kharal’s daughter was a candidate of the provincial assembly.

4.The Applicant told Kharal that he supported PPP. Subsequently, the Applicant became the target of two attempted shootings by the PML(N) people. He escaped on both occasions. He later left his village for Lahore.

5.In mid-2014, the Applicant experienced another shooting attempt in Lahore. Again, he managed to escape.

6.The Applicant never sought assistance from the Pakistan police or authorities.

7.The Applicant decided to leave Pakistan. On 18 November 2014, he left the country and arrived in China on the next day. He sneaked into Hong Kong on 19 December 2014. The Applicant was arrested by the police on 22 December 2014. He raised a non-refoulement claim on 27 December 2014.

8.In the ensuing two‑tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

9.On 11 May 2018, the Applicant applied for leave for judicial review.

Respondents

10.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 case on a rehearing basis.

11.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.

12.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review of the Director's decision. Therefore, I shall deal with his application in relation to the Adjudicator’s decision only.

The Director's decision

13.In his decision dated 2 December 2016, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

14.The Applicant appealed to the Board. The Adjudicator interviewed him on 9 April 2018.

15.The Adjudicator found the Applicant was unable to name PPP and PML(N) in full. He called them the People’s Party and N League respectively. The Adjudicator found it illogical that the PML(N) people should single out the Applicant after they won the election in mid-2013. The Adjudicator also considered it odd that the PML(N) people would be so incompetent that they failed to kill the Applicant in the three alleged shootings. The Adjudicator noted the Applicant did not seek asylum in China and he only asked for non-refoulement protection after he had been arrested by the police in Hong Kong. The Adjudicator did not believe the Applicant’s claim.

16.Even on the Applicant’s account of events, the Adjudicator considered there was no evidence of state involvement, consent or acquiescence. The complained situation was a private dispute and not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. There was no evidence that the Applicant had been inflicted with suffering to a minimum level of severity. The Applicant had never sought help from the Pakistan police or authorities. He failed to prove reasonable state protection was not available to him. In any event, the Adjudicator was satisfied that internal relocation was viable in the Applicant’s case.

17.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 26 April 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

18.The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 12 above, I would deal with his application in relation to the Adjudicator’s decision only.

19.The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to note that he had no or limited options at his disposal to bring evidence before the Board because he was in custody in the immigration detention centre. The Applicant also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence.

Court hearing

20.The hearing took place on 28 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

21.The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents.

22.The Applicant was asked to clarify his grounds of complaint. He replied he was in custody for a month after he was first arrested by the police in December 2014. Then he was released on recognizance. He was re-arrested in October 2015 for unlawful employment. He stayed in prison until August 2016 and was further remanded by the Immigration Department for a month till late September 2016. He was released on recognizance again.

23.The Applicant was asked how that would affect his preparation for the appeal hearing before the Adjudicator on 9 April 2018. The Applicant then changed to say the duty lawyer acting for him at the Director’s stage (up to 2 December 2016) had cut his story short and wrote differently from his instruction. The Applicant said he had submitted all of his case to the Director and the Adjudicator but they crossed out his reference to religious disputes between Sunni Muslims and Shia Muslims in Pakistan. The Applicant said he was a Shia Muslim.

Discussion

24.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25.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] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

26.The Applicant complained in Enclosure 2 of Form 86 that his custody hampered his proving the claim. However, he admitted in court that he had been freed on recognizance since September 2016. The appeal hearing before the Adjudicator took place much later on 9 April 2018. The Applicant had plentiful time to prepare for the appeal.

27.The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to give him sufficient chance to arrange relevant evidence. The Applicant did not provide specifics. On the other hand, the Adjudicator’s report showed the Adjudicator had engaged in joint endeavour with Applicant. The Applicant gave evidence through an interpreter in the Board hearing.

28.The Applicant made a last-minute complaint in court accusing the duty lawyer acting for him at the Director's stage had cut his story short and wrote differently from his instruction. He also complained the Director and the Adjudicator crossed out his reference to religious disputes between Sunni Muslims and Shia Muslims in Pakistan. He was a Shia Muslim. These complaints were not mentioned or hinted in the Applicant’s affirmation or Form 86 at all. There was no evidence to show religious conflict was ever a basis of the Applicant's non-refoulement claim.

29.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper grounds for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator 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 was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

30.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I refuse to grant him leave to apply for judicial review.

Dated the 15^th day of August 2019

(Henry Ng)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15/8/2019 Ali Hasnain Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/8/2019 The Director of Immigration 1^st Putative Respondent’s ref. no.: QA T/C 2217/16 (formerly RBCZ 10100/15) The Adjudicator of the Non-refoulement Claims Petition Office 2^nd Putative Respondent’s ref. no.: USM 5501/16/12/148/P1236 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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] CACV 54/2018, para 45.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).

Cites 4 cases

Cases cited in this judgment