Muhammad Asghar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 787/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant entered Hong Kong legally on 22 January 2007 from Karachi and overstayed from 15 February 2007. He was arrested by the police on 11 June 2013. He was transferred to the Immigration Department on 12 June and released upon recognisance on 25 July 2013. His NRF claim form was submitted on 2 September 2015.
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HCAL 787/2017 [2018] HKCFI 1681 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 787 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by The Honourable Mrs Justice Campbell-Moffat:
Observations for the Applicant: Procedural history 1.The Applicant entered Hong Kong legally on 22 January 2007 from Karachi and overstayed from 15 February 2007. He was arrested by the police on 11 June 2013. He was transferred to the Immigration Department on 12 June and released upon recognisance on 25 July 2013. His NRF claim form was submitted on 2 September 2015. 2.The Applicant attended a screening interview on 27 October 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 November 2015 and by Notice of Further Decision (re BOR 2) on 26 June 2017. The Adjudicator of the TCAB, Chan Ling-ling, heard him on 5 July 2017 and considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 21 July 2017. 3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 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 comes from Mohalla Sher Shahi, District Gujrat in the Punjab. He is single and a Muslim of no political affiliation. From about 2003, the Applicant operated a video and photographic business with four employees. In late November 2006, the Applicant was engaged to shoot a video of an event, which he did, and about which he kept a copy in his shop, having provided two copies to his customer. The next day, the Applicant’s brother was left in charge of the shop (and presumably the stock containing the copy video) whilst the Applicant was away. In the interim, the police and other government agents went to the shop to obtain the video, questioned the brother and the Applicant’s employees about the event and closed down the shop, which has not reopened since that date. The Applicant’s brother was interrogated for two days during which time he says he was beaten up before his father secured his release. The customer was arrested. As the Applicant believed the video to be anti-government, he did not return home. He did not assist the police by arranging for the video to be released to them nor did he assist the participants of the video as he feared both parties might kill him despite having received no such threat. The only person to be injured had been his brother. None of his employees, who had participated in taking the video, had been harmed or threatened. 5.The Applicant was already in possession of a Hong Kong visa and therefore left Pakistan for Hong Kong on 21 January 2007. Having lost his passport, money and ticket whilst in Hong Kong, the Applicant says he reported the matter to the police who were unable to help. The Applicant maintains that as a result, he was forced to remain in Hong Kong illegally and eventually approached UNHCR in February 2007. This was not followed up because he was told they could be of no help unless he had been arrested by the police, which finally occurred on 11 June 2013, some 5½ years after his arrival. The non-refoulement claim 6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:
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. He considered a wide 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, which was very limited. 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 7 June 2017, 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 failed to do so. Decision of the Adjudicator 9.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. The Adjudicator noted that there was no evidence in support of the allegations made by the Applicant and that his account was inherently unbelievable. The most telling observation being that the Applicant shot a video and yet had no idea of its anti-government content nor that the speakers were well-known political figures. 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.Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers 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 3rd day of August 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
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