Ghani Usman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL620/2017

[2018] HKCFI 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 620 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong illegally by boat from China on 1 June 2007.  A few days later, he approached the offices of UNHCR to claim refugee status, which was refused in 2008.  In the interim, he was arrested on 20 December 2007, and referred to the Immigration Department on 22 December.  He was released on recognisance on 15 January 2008.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 21 August 2008.  His NRF claim form was finally submitted on 19 May 2014.

2.The Applicant attended a screening interview on 15 August 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 19 September 2014 and by Notice of Further Decision (re BOR 2) on 21 April 2017.  The Applicant was represented by the Duty Lawyer Service throughout.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 3 October 2014.  The Adjudicator of the TCAB, Mr Allan Wyeth, listed the matter to be heard on 19 November 2015, but he failed to attend despite the TCAB calling him five times between 17 and 19 November.  No alternative address or telephone number had been lodged with the Immigration Department. Given that proper attempts had been made to give notice of the hearing and of the consequences of his failure to attend, the Adjudicator dealt with the appeal on the papers.  The Adjudicator refused his appeal on 18 August 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 September 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant was born in 1986 in Mandi, Baha Uddin, Punjab, Pakistan and is single.  The Applicant was not a member of a political group or organisation in Pakistan.  In 2003, he became a gold craftsman.  The factual background relied upon in support of the Applicant’s claim goes back to 1998 when the Applicant was just 12 years old.  He maintains that there was a family dispute over land between his father and one of his uncles, who was rich and powerful, with shifting but effective political affiliation.  The uncle made a number of false complaints to the police about the 12–year‑old Applicant, who was taken to a local police station and tortured by having the soles of his feet beaten.  Between 1998 and 2005, several such allegations and beatings by the police occurred, reaching a peak in 2005, when he was accused of robbery and detained for 40 days.  He was eventually acquitted.  None of his injuries required hospitalisation.  He did receive medication at a private clinic.  There was no direct evidence that the uncle was behind the allegations or detentions.  Once he was released, the Applicant went to Kharian and worked there for a short while but was required to attend court hearings from time to time.  In 2007, when attending a family funeral, the uncle threatened his life but he has not seen him since.  It was at this point that his father suggested he leave the country.  The Applicant had no difficulty obtaining a passport or leaving the country.  He arrived in China on 26 May 2007, stayed a few days and then travelled to Shenzhen whereupon he obtained illegal passage to Hong Kong on a boat.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii. risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);

iii. risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); and

iv. risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).

6.It is the duty of the Director and the Adjudicator to independently weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  He must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present.” The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

7.The Director analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law, key legal principles and made reference to relevant materials.  He was of the view there was no evidence of any connection between the uncle, the police or other state authorities.  The dispute was a private not a public one.  Assertions were made in respect of police corruption and brutality which were accepted but it was noted that steps were in place to combat this.  He also indicated that as a 28‑year‑old male with the skills of a craftsman and 10 years of education, relocation within Pakistan would not be unduly harsh.  In coming to his decision to reject his claim under the various heads, the Director fully considered the up to date situation on the ground in Pakistan, acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

8.Having considered the papers, the Adjudicator arranged for an oral hearing, which the Applicant failed to attend.  After attempts were made to contact the applicant to no avail and all practical procedural steps had been taken, he considered the appeal on the papers.

9.At paragraph 39 of his Decision, the Adjudicator said:

“With the appellant failing to appear before the Board, the Board was left with no direct material from which to properly make findings as to the appellant’s credibility. Also, with no oral evidence from the appellant to possibly better or more fully present his claim and the Grounds of Appeal, the Board finds there is nothing to tell against the finding in the Decision and N of D, that the appellant’s non‑refoulement claim on all applicable grounds fails.”

10.The Adjudicator found the applicant’s account to be vague, uncertain and contradictory.  He further intimated that the Applicant’s failure to attend and speak for himself meant that there was nothing to undermine the Decision of the Director or his own view of the papers before him.  As this was a re-hearing and not an appeal from the Director’s Decision, it was for the Adjudicator to consider the matters afresh.  He did so upon the papers alone.  Given that there is no absolute right to a hearing before the Adjudicator and all proper steps were taken to secure the Applicant’s attendance, he cannot be criticised for proceeding as he did. 

Leave to apply for Judicial Review

11.Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

12.The Applicant did not submit any grounds of review other than to say that the Director and Adjudicator failed to consider the reality on the ground of life in Pakistan.  There is no question that was not done by the Director and by the Adjudicator as best he could given the circumstances of the Applicant’s failure to attend.

Conclusion

13.I have considered the papers carefully.  I have not found any error of law or procedure in respect of the Director’s Decision nor do I see any evidence of procedural unfairness or a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determinations, which were open to him on the facts and eminently reasonable.

14.The Applicant failed to attend the Directions Hearing before the TCAB and thereafter failed to attend to present his case and answer any concerns the Board may have had.  The Adjudicator found the claim to be wholly implausible and had no difficulty rejecting the appeal upon consideration of the papers for the reasons given.

15.The Applicant’s limited Grounds of Review were not supported by argument and did not direct themselves to the issues of unlawfulness, unreasonableness or unfairness.  There is a duty upon the Applicant to explain, even in the most simple terms, why he says his case should be the subject of judicial review.  This he has failed to do.  In my judgement, the Applicant’s claim for judicial review is not reasonably arguable.  I refuse leave for judicial review.

Dated 10^th day of April 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