Aqeel Abbas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL673/2017

[2018] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 673 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 3 March 2008 and was arrested by the police on 6 March 2008.  He was transferred to the Immigration Department on 8 March 2008.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 March 2008 and released on recognisance on 26 March 2008.  His NRF claim form was submitted on 25 August 2015.

2.The Applicant attended screening interviews on 19 September, 12 October and 16 November 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 7 December 2016.  The Adjudicator of the TCAB, Mr Ronald Cheung, heard him on 2 August 2017.  The Adjudicator considered his appeal on all applicable grounds.  He refused his appeal on 8 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 25 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.  He was born on 24 April 1984 in Thatta Musa, Gujrat and has no political affiliation.  He is a Muslim.  The Applicant was employed between 2004 and 2008 in a shop selling poultry.  It was because of his employment that he encountered difficulties with a person called Kabir, who, according to the Applicant, was a local gangster and politically involved with the Pakistan Muslim League.  This customer started to run up a debt with the shop, which the Applicant’s employer deducted from the Applicant’s wages.  As a result, the Applicant refused Kabir further credit.  In retaliation, Kabir and a group of friends, assaulted the Applicant with pistols, wooden sticks and chopper.  The Applicant received an open wound to his head, which required stitches but no hospitalisation.  The Applicant reported the incident to the local police and understood they sought to take action against Kabir but were unable to arrest him.  He did not take the matter further.  He later said that Kabir and his friends (alternatively his friends alone) approached him once more in his home, in order to persuade him to drop the case against Kabir.  They assaulted him once more but he did not require medical assistance.  He did report the assault to the police.  In his interview with the Adjudicator, he said he was not assaulted and did not report this second incident to the police.  In order to avoid Kabir, the Applicant relocated to other parts of Pakistan over a period of weeks and months and was not followed.  He understood enquiries had been made about him with his family but they were not under threat.  The Applicant decided to flee Pakistan and went to China on 18 February 2008, coming to Hong Kong illegally on 3 March 2008.

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 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 on three separate occasions as outlined above at a time when he was legally represented, although the only effective hearing appears to have been the last one.  He considered a range of documentary evidence.  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.  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 succinct manner appropriate to the short facts relied upon.  Given the nature, background and number of incidents relied upon, it is not a surprise that the Applicant was found not to have made out his case.  The matter was clearly a private one with no evidence of state involvement.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  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.  He engaged the Applicant and tested his version of events which contained a number of inconsistencies but nevertheless gave the Applicant the benefit of the doubt where possible.  The Adjudicator reasonably found that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to Pakistan, which is a Risk State.  Even though he found there to be no risk to the Applicant, he nevertheless went on to consider the possibility of relocation, which he found to be a reasonable and viable option open to the Applicant if he were to be returned to Pakistan.

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 of Immigration 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/her 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.Despite the Applicant failing to submit any grounds of review, 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.  Quite the opposite is the case.  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, giving him the benefit of the doubt where it was due.  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 he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 17^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