Bukhari Waqas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL688/2017

[2018] HKCFI 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 688 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 on 22 September 2009, by boat from China and was arrested the same day.  He was transferred to the Immigration Department and released upon recognisance on 30 September 2009, having submitted a non-refoulement (“NRF”) claim by way of written representation on 24 September 2009.  His NRF claim form was submitted on 28 November 2014.

2.The Applicant attended screening interviews on 30 July, and 4 September 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 16 September 2015 and by Notice of Further Decision (re BOR 2) on 9 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Chow Siu-hung, heard him on 30 September 2016, before the BOR 2 Decision and then on 31 August 2017, as he had failed to attend on 14 July 2017.  The Adjudicator therefore considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 22 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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 and raised in Laree Saidan, Tehsil, Pakistan and is a Shia Muslim.  His immediate family ran the local Imaam-Bargah, which is a Shia Muslim place of worship. He was educated up to Primary 3 and is married with one daughter.  His wife and daughter live in Pakistan.

5.By 1998, the Applicant was running his own tailoring business in a local shop.  He came to know someone, who was a Sunni Muslim, and his associates who sought to persuade the Applicant to switch faith which he refused to do.  As a result, he was verbally threatened.  This continued through 2007 to 2008.  On 10 August 2009, a group of five to six Sunni Muslim’s beat him up at his shop without weapons.  He received no injury but nevertheless went to stay with a relative in Kotli.  Whilst there he was informed that a group of people had damaged his shop and threatened to kill him.  He received no such threats in Kotli.  He did attempt to report the incident but the local police were not interested as it was a small matter.  On 13 August, the Applicant returned home to collect his personal things and then went to Islamabad where he obtained a China Visa and eventually left the country on 4 September 2009, without further incident.

The non-refoulement claim

6.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”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

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”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

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”).  Under “persecution risk”, the Applicants must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

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”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.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

8.The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as outlined above.  He considered the available documentary evidence including documentation as to the general situation in Pakistan at present.  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 the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, there was absolutely no merit in any claim under this head, just as there is and was no merit in a claim under any other head.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds. He arranged for three oral hearings before and after the BOR 2 Further Decision and treated the appeal as a rehearing.  Even though the Applicant failed to appear in July 2017, the Adjudicator gave him the opportunity to appear and supplement his claim in respect of BOR 2.  He correctly set out the law and key legal principles including the burden and standard of proof.

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 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

11.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

12.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.  The Applicant’s case under all heads of claim was completely without merit.  He had suffered no injury; supposed himself to be at risk as a result of hearsay; had made no determined effort to seek the assistance of the authorities and had been free from any suggestion of harm by moving elsewhere in Pakistan.

13.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