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

HCAL660/2017

[2018] HKCFI 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 660 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

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 5 March 2009.  He was arrested for illegally remaining on 6 March, and submitted a non-refoulement (“NRF”) claim by way of written representation on 10 March 2009.  He was released on recognisance on 17 March 2009.  His NRF claim form was submitted on 31 July 2014.

2.The Applicant attended a screening interview on 7 October 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 13 January 2015 and by Notice of Further Decision (re BOR 2) on 2 February 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 26 January 2015.  The Adjudicator of the TCAB, Mr Peter Nguyen, heard him on 15 September 2015.  The Adjudicator refused his appeal on 12 October 2016, and in respect of BOR 2 on 1 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 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 in Nai Abadi, Pakistan.  He obtained a Diploma in Commerce in 2008.  It was whilst at College that his difficulties arose.  The Applicant alleges that whilst at College, he was the recipient of insults, physical attacks and death threats from a group of students known as the Jutt Group.  According to the Applicant, this student group was connected to the Pakistan Muslim League.  The Applicant belonged to a rival student group known as the Friends Group.  In his second year at college, the Applicant and three of his friends were assaulted by members of the Jutt Group during which the Applicant received bruises and abrasions and from which the Applicant maintains it took 20-25 days to recover. The matter was reported to the Principal of the College but not to the police. In retaliation, shortly after this assault, the Applicant and his friends assaulted the perpetrators themselves causing some injury to their victims.  As a result, the Applicant and his friends were investigated by the police and went into hiding until a reconciliation was arranged.  No prosecution ensued but the threats and insults continued, leading to a fight between the two groups at the end of the College year, which lasted approximately 15 minutes and resulted in the Applicant receiving bruises and swelling.  As the threats continued the Applicant arranged to leave Pakistan, which he did unhindered.

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 and gave the Applicant an opportunity to address him upon his BOR 2 claim at the initial interview but he did not wish to add anything further in respect of the factual basis of his claim.  The Director 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 chose not to do.  In coming to his Decision to reject his claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner.  The Applicant was given notice on 12 January 2017, of the need to review a claim under BOR 2 but did not submit any further documentation and, as a result, his case was considered on the papers before the Director at that time.  In so doing, the Director acted reasonably and in a fair manner in accordance with the relevant procedure and the applicant was not prejudiced as a result.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds on two separate occasions.  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.  After consideration of all relevant documentation in a proper and fair manner, 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.

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 application in order to obtain leave to judicially review them.

Grounds of review

10.There were no grounds of review.  The Applicant maintains that he is dissatisfied with the decision of the Adjudicator and 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 he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 15^th day of June 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