Hussain Adil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL602/2017

[2018] HKCFI 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 602 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 from China on 14 May 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 16 May 2014.  He was released on recognisance on 1 June 2014.  His NRF claim form was submitted on 1 February 2016.

2.The Applicant attended a screening interview on 11 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 March 2016.  The Applicant made further submissions in respect of BOR 2 by letter on 29 June 2017.  By Notice of Further Decision (re BOR 2) (“Further Decision”) that application was refused on 15 November 2017.  He appealed the original Decision to the Torture Claims Appeal Board (“the TCAB”) on 7 April 2017.  The Adjudicator of the TCAB, Ms Wong Hing-chun, heard him on 31 March 2017.  The Adjudicator confirmed that the Applicant did not wish to add any grounds of appeal under BOR 2, which had yet to be considered by the Director at that time, and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 25 August 2017.

3.The Applicant sought leave to apply for judicial review on 8 September 2017 and did not request an oral hearing.  He made an application for legal aid on 11 September 2017 which was refused on 27 November 2017.  The matter was therefore considered on the papers.

Background

4.Between 1993 and 2014 the Applicant lived in Faisalbad, Pakistan.  He is a university graduate and worked as a salesman.  In 2013, the Applicant and his brother had a dispute over land which the Applicant owned.  This dispute resulted in threatening phone calls from his brother and from unknown individuals whom the Applicant believed were acting for his brother.  In 2014, his brother assaulted him and sought to intimidate him by attending at his home address with four other men, all carrying pistols.  He received only minor injuries for which he did not seek hospital treatment nor did he report the matter to the police.  The Applicant alleges that as a result of the assault he went to work in Islamabad for the same company he was working for in Faisalbad.  Whilst in Islamabad he continued to receive threatening phone calls to induce him to sign over the land to his brother and on one occasion four unknown males attempted to shoot him in the street but he escaped without injury.  Once again he did not report the matter to the police.  The Applicant alleges that as a result of reporting the incident to his company, the company terminated his employment and in early 2014 he went to China and then came to Hong Kong.  Whilst the Applicant and his brother belong to different political parties, there was no suggestion by him of any politically motivated aggression or subversion and he has had no involvement with state authorities including the police.

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 analysed the Applicant’s claim on all applicable grounds and the Applicant was interviewed to support his version of events.  The Director correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given a proper opportunity to state his case and to supplement the evidence before the Director, if he wished to do so.  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 supported by reference to the evidence.  He took into account the COI and noted the difficulties which a citizen of Pakistan might face and the availability of alternative routes to justice, but none of this was applicable in this case as the Applicant had not been persuaded to sign over his land and had not sought recourse to the law for his injuries.

8.The Director considered the Applicant’s claim under BOR 2 separately in late 2017 after the Applicant had received notice of his unsuccessful application under the other three heads of claim and therefore the Applicant availed himself of the opportunity to submit additional evidence.  He maintained that after he had left Pakistan, his brother occupied his land. He made an unsubstantiated allegation that his father had been shot in the thigh by a group of people looking for the Applicant.  This was reported to the police but no action was taken because of the political affiliation of the group.  Because the police had closed the case, the Applicant’s family had moved to an undisclosed new address.  In the interim the Applicant believes that his brother had made a number of false allegations about him to the police and he is a wanted figure.  He submitted three First Information Reports which suggest that he was being investigated for a public order offence, a firearm offence and for robbery and assault, all of which pre-date his departure from Pakistan.  He suggests that his life would be in danger from the Pakistani Government and police if he were to be returned to Pakistan.  The Director considered all of the further information provided by the Applicant but did not find it credible and it did not satisfy the burden of proof placed upon him under BOR 2.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds not 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 hearing took place in March 2017, before the BOR 2 submissions referred to above.  In this hearing the Applicant confirmed that his parents had already moved to Kashmir to avoid his brother but made no mention of the gun-shot wound to his father’s thigh.  He also appeared to concede that he would be prepared to transfer his land to his brother and ultimately return to Pakistan once the matter is settled.  The Adjudicator made considerable effort to enquire into the current status quo and assessed the level of risk made.  She did so in a procedurally correct manner, acting reasonably and fairly throughout.

Leave to apply for judicial review

10.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

11.The Applicant submits that relocation is practically impossible because the fight against terrorism has escalated.  The Applicant appears to have missed the point that his claim arises out of a personal inter-familial dispute and not a political one.  If there is an escalation of terrorism in Pakistan, it does not affect the private dispute which the Applicant has with his brother and would not have affected the determination of either the Director or the Adjudicator who found that the Applicant did not establish the requisite risk to himself if he were to be returned to even his own home village.  There is no merit in this argument.

12.The Applicant submitted that the Adjudicator “failed miserably” to consider the evidence provided.  On the contrary, both the Director and the Adjudicator considered all of the evidence before them in great detail and analysed it carefully before assessing whether the Applicant had met the burden and standard of proof required in respect of the relevant heads of claim.  It was open to the Applicant to submit additional evidence at each stage of the process and he did so in respect of his claim under BOR 2. The Director and the Adjudicator found it to be insufficient.

13.The Applicant also submits that the Director and the Adjudicator made an error of law in relying upon COI and facts supportive of rejection of his claim.  That is not the case.  The COI was up to date and taken into consideration.  There was no error of law in considering them.  The facts before them were within the knowledge of the Applicant and he could have submitted additional information if he wished to do so.  He was given every opportunity to address the decision makers.  Similarly there was no error of law made in their consideration of that evidence.

14.Lastly, the Applicant has relied upon a series of criticisms commonly seen in these Applications but without any supporting reference or explanation.  He alleges in essence, a bias by the Director and the Adjudicator and an unrealistic approach.  There is no merit in this suggestion as it is clear on the papers that both parties were at pains to consider all that the Applicant said and the documents which he relied upon.  The burden was upon him to show the requisite level of risk, which he failed to do.

Conclusion

15.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 the 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.

16.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 he 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