Karim Fazal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL582/2017

[2018] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 582 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 on 22 February 2014.  He was arrested for illegally remaining on 15 March 2014 and referred to the Immigration Department the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 March and he was released on recognisance on 17 April 2014.  His NRF claim form was submitted on 14 November 2015.

2.The Applicant attended a screening interview on 4 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 February 2016 and by Notice of Further Decision (re BOR 2) on 1 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Mr Fraser Syme, heard him on 13 July 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 26 July 2017.

3.The Applicant sought to apply for judicial review on 4 September 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Pakistani national and a Sunni Muslim.  He was born in Jasrota in the Punjab.  In 2010, he married and has two daughters.  The current situation, about which the Applicant complains, concerns a dispute over the sale of a piece of land by his father, in which his father alleged he had not been paid the full price, however the Small Claims Court found against him.  As a result of that dispute, the younger generation became involved in the dispute and there was a scene in 2005, when there was a fist fight between the two families in which the Applicant and his friend were outnumbered and were beaten up.  They received minor injuries.  This incident was not reported to the police.  Three years later the Applicant moved some 10 kilometres away from his village to work as a construction worker and returned in 2010 to marry.  In 2010, he was threatened with death and warned not to proceed to pursue the land matter but was not harmed in any way.  This incident was also not reported to the police.  Between 2010 and 2013 the Applicant moved to his wife’s home area of Lahore City but was warned in 2013 not to return to his home village because of death threats.  He therefore paid 90,000 Rupees to an agent for passage to China.  He left Pakistan without difficulty on 18 November 2013.

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 weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and the 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.  Under the HKBORO, 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 firstly analysed the Applicant’s claim on all applicable grounds (not including BOR 2) and adjourned the deadline for submission of documentary evidence twice to allow the Applicant to put proof of legal proceedings before the court, which he said was with the Legal Aid Department for translation, but which were never submitted.  The Director therefore considered the case on the papers before him and upon the information garnered in interview.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he failed to do.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. Similarly, in respect of BOR 2, which was dealt with on another occasion, the Applicant was given an opportunity to make a further submission and did not do so.  The risk to the Applicant was therefore considered on the available papers and the Director found against him.

Decision of the Adjudicator

8.The Adjudicator also analysed the Applicant’s claim on all applicable grounds including BOR 2.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator did not believe the Applicant’s story.  He explained in detail why that was the case in his Decision.  He found there was no religious or political conflict, this was a private dispute between his father and someone else and his father had chosen not to progress it.  Even so, he went on to consider whether it would be practicable for the Applicant to relocate within Pakistan.  Given his previous history of moving just 10 kilometres away with no harm befalling him, the Adjudicator found that it would be feasible for the Applicant to live with his wife in Lahore as he had done so before without incident.  In all, he found the Applicant had not established his case to the requisite standard.

Leave to apply for judicial review

9.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

10.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator 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 their determinations, which were open to them on the facts and eminently reasonable.

12.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

Dated 13^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