Irfan Mashooq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL710/2017

[2018] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 710 of 2017

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 in July 2009 from China.  He was arrested on 26 July 2009 and transferred to the Immigration Department the following day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 28 July 2009.  He was released upon recognisance on 1 August.  On 26 May 2010, he was arrested and prosecuted for breach of condition of stay by reason of taking up employment and was sentenced to 15 months’ imprisonment.  Upon release, he was detained at the Castle Peak Bay Immigration Centre (“CIC”) and was made the subject of a removal order on 26 March 2011.  Having indicated that he did not seek to appeal such order, he was released on recognisance once more on 24 May 2011.  On 27 August 2015, he was prosecuted for Attempted Robbery and sentenced to 26 months’ imprisonment.  Upon release on 14 January 2014, he was detained at CIC.

2.The Applicant submitted his NRF claim form on 17 February 2017, and was interviewed on 28 February.  The Director of Immigration (“the Director”) dismissed his claim under all heads, by Notice of Decision (“the Decision”) on 10 March 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Ms Betty Kwan, heard him on 27 June 2017.  The Adjudicator refused his appeal on 14 July 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 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 Pindi Kokhran in the Punjab.  He is married with one son and is a Shia Muslim.  He completed high school education.  Between 2001 and 2008, the Applicant worked for his father as a glass fitter.  As a result of the religious tensions between Shia and Sunni Muslims, the Applicant was involved on a number of occasions with others in clashes against groups of Sunni.  In an incident in 2005, he received fractures to his forearm and finger for which he received hospital treatment.  He says he reported the assault to the police but they were not willing to assist because of his religion.  After that incident, the Applicant received several verbal threats and therefore left home in November 2005, but returned to work for his father once again in April 2006.  He maintains that he then received threats to kill and several beatings which resulted in internal injuries for which he took herbal medicine.  In November 2008, the incidents escalated to a shot through a window of his house.  This too was reported to the police who were unwilling to register the report.  The Applicant therefore left his home and went into hiding eventually travelling to Hong Kong through Bangkok in July 2009.

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”).  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 Applicant 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.

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.  He considered a wide range of documentary evidence including documentation submitted by the Applicant.  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, which he did.  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.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  Her investigation and determination were extensive and thorough.  She had a substantial amount of local knowledge at her fingertips.  She considered all relevant material and explained her reasoning in detail, having given the Applicant the opportunity to address all of her concerns, which at times he was unable to do when faced with conflict of facts.  Despite his lack of cogency, the Adjudicator looked at the evidence as a whole to assess whether he had satisfied the relevant burdens of proof and found that he had not.

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 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 there being no grounds of review, I have considered the papers, grounds and submissions carefully.  The Applicant complains about the decision of the TCAB but I have nevertheless reviewed both Decisions to ensure complete fairness to an unrepresented Applicant.  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 29^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