Ahmed Zakar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 708/2017

[2018] HKCFI 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 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 26 October 2011 and was arrested by the police on 31 October 2011.  He was transferred to the Immigration Department on 2 November and submitted a non-refoulement (“NRF”) claim by way of written representation on 3 November 2011.  He was released upon recognisance on 23 December 2011.  His NRF claim form was submitted on 13 May 2015.

2.The Applicant attended a screening interview on 19 June 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 July 2015 and by Notice of Further Decision (re BOR 2) on 24 October 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 13 August 2015.  The Adjudicator of the TCAB, Mr William Lam, heard him on 17 July 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 11 July 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 on 1 January 1988 in Sandalwala in the Punjab and is a Muslim.  Although he is 30 years old, the Applicant has no employment experience.  Neither he, nor his family belong to any groups or organisations in Pakistan.  At some stage in mid-2005, the Applicant maintains that he was approached by members of Al Qaeda to join them.  He refused and was subsequently kidnapped along with very may other young men.  After a month, the Applicant was able to escape and fled to Mirpur where he hid for two years, living off the support of friends.  In 2009, the Applicant became aware that Al Qaeda had located him and he therefore fled to Karachi, staying with a friend.  It was that person who suggested the Applicant should come to Hong Kong.  He did so by crossing the border from Pakistan to China on 5 July 2011.  After three months, he crossed the border on foot into Hong Kong from Shenzhen.

5.At no stage was the Applicant or his family harmed by Al Qaeda and he does not believe that Al Qaeda knows his home address.  The Applicant did not report the kidnapping to the authorities and had no contact with Al Qaeda once he had escaped in 2005.

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 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.

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 as indicated above.  He considered available documentary evidence.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given an opportunity to state his case.  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.  In so far as the Further Decision is concerned, the Applicant was sent a letter on 21 September 2016 in which he was notified of his right to make a claim under BOR 2 and to make further submissions in writing in respect of such claim.  He declined to do so.

Decision of the Adjudicator

9.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.  The basis of the claim before both the Director and the Adjudicator was very simple.  The Applicant complained that he was at risk because of his fear of reprisals from a terrorist organisation.  He made no complaint against any state agency.  He suffered no harm at the hands of his abductors.  The Adjudicator did not find the Applicant to be a credible witness, but nevertheless considered his case at its highest. He found no state involvement, no harm or threat of harm, no persecution and no likelihood of such if returned to Pakistan, if not to his home village.

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 because he maintains he will have documentary proof in the near future.  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.  The Applicant has had seven years to prepare his case which was very basic and even at its highest could not have founded a claim under any of the relevant heads.  Nevertheless, he was given every opportunity to make his case before both the Director and the Adjudicator and was given the benefit of the doubt for the purposes of assessing the relevant heads of claim.

Conclusion

12.Despite the fact that the Applicant failed 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.  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.

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 6^th day of July 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