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

HCAL 789/2017

[2018] HKCFI 1682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 789 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 first arrived in Hong Kong legally on 4 June 2003 and overstayed.  He was arrested on 21 January 2008 and referred to the Immigration Department on the same day.  He lodged a torture claim on 3 February 2008 and was released on recognisance on 7 March 2008.  On 23 November 2009, he withdrew his claim.  He was convicted of breach of condition of stay by overstaying on 18 January 2010 and sentenced to one month’s imprisonment. The Applicant was repatriated to Pakistan on 24 February 2010.

2.The Applicant then entered Hong Kong once more, this time illegally by boat, on 13 August 2015, from China.  He surrendered to the Immigration Department on 17 August 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation dated 1 August 2016 and 15 September 2016.  His NRF claim form was submitted on 12 December 2016.

3.The Applicant attended a screening interview on 10 January 2017.  The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds, by Notice of Decision (“the Decision”) on 24 January 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Fraser Syme, heard him on 1 August 2017.  The Adjudicator refused his appeal on 17 August 2017.

4.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

5.The Applicant is a Pakistani national.  He was born in the Gujrat District of the Punjab on 11 February 1965.  He is single and a Muslim, with no work experience despite being 53 years old.

6.In 2002, at the age of 36, the Applicant was taking part in a cricket match when a dispute broke out.  The dispute escalated into a fight between the opposing teams during which the Applicant was attacked by the son of Choudry Ibrar (“Choudry”) and the Applicant retaliated by assaulting him in return.  The Applicant does not know the extent of the son’s injuries but he hit him on the head twice and on his neck.  Needless to say, the boy’s father was not amused and sent people to look for the Applicant.  On one occasion only, the Applicant was beaten by a group of men with guns, from which he received bruises and was not hospitalised.  No complaint was made to the police because of the influential position and political connections of the Choudry family.  After 10 days, the Applicant fled to a relative’s house and then came to Hong Kong in 2003, whereupon he overstayed.  He was arrested in early 2008 and was later released upon recognisance having made a torture claim.  That claim was withdrawn because his brother believed that the threat to the Applicant was over and he wished to return to Pakistan.  He was repatriated on 24 February 2010, having been sentenced to 30 days for overstaying.

7.Once the Applicant returned to Pakistan, he soon realised that he was still in trouble with Choudry and maintains that he was assaulted twice more by a group of men who claimed to be acting on behalf of Choudry.  After neither assault was he hospitalised nor did he report the assaults to the police.  The Applicant says he fled to his sister’s home and then to his aunt’s home in Lahore, where he stayed for two to three months without incident.  He then left Pakistan and flew to China on 12 August 2015, which fails to account for the intervening four years.

The non-refoulement claim

8.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be 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.

9.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

10.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 and to supplement the evidence before the Director.  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.

Decision of the Adjudicator

11.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 Adjudicator noted that the Applicant wished to rely upon the hearing bundle alone,[1] but did not wish to answer questions.  He did state that his life remained in danger if returned to Pakistan. The Adjudicator provided the Applicant with an opportunity to reconsider his refusal to answer questions and advised him of the consequences.  He identified in his decision those issues which gave him concern and which he would have wished to canvass with the Applicant.  Given the approach by the Applicant, he was unable to satisfy the burden placed upon him.

Leave to apply for judicial review

12.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

13.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

14.Despite the fact that the Applicant did not 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 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.  The Adjudicator similarly provided the Applicant with an opportunity to state his case and address the Adjudicator’s concerns, which he declined, despite being advised of the consequences by the Adjudicator.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15.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 3^rd 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

Form CALL-1