Younas Shiraz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1101/2017

[2018] HKCFI 1821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1101 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 13 January 2016 by boat.  He surrendered to the Immigration Department on 20 July 2016 and submitted a non-refoulement (“NRF”) claim by way of written representation on the same day.  He was released upon recognisance on 6 April 2016.  His NRF claim form was submitted on 2 May 2017.

2.The Applicant attended a screening interview on 23 May 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 26 May 2017.  The Adjudicator of the TCAB, Wan Kah Ming, dealt with the matter on the papers and dismissed his appeal on 12 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 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 in Kasgumma, Pakistan, on 26 July 1989 and is 29 years old.  He is Mianray and single.  He has no political affiliation.  The Applicant farmed land owned by his family.  In July 2015, whilst working the land, the Applicant was approached by a relative and two unknown males who were carrying choppers, knives and wooden sticks.  The relative insisted that he owned the land in question and threatened the Applicant, telling him to leave.  When he refused, he was beaten by the men.  The Applicant lapsed into unconsciousness and received bruising, swelling and a laceration to his head.  He was taken to hospital by two villagers, where he remained for three days and received four stitches to his head wound.  Upon discharge, the Applicant went immediately to the local police station to report the incident.  Although a formal report was made, no follow up action was taken by the police.  The Applicant maintains that he enquired as to the investigation on two occasions but nothing had been done and he assumed that the local police had been bribed. Despite that, he did not report their inaction to any local anti-corruption agency.  Instead, he left his village.

5.In September 2015, the Applicant was threatened by his relative by telephone.  He was told that he would be killed if he ever set foot on the land again.  This threatening phone call was not reported to the police.  As a result of the telephone call, the Applicant took a five-hour bus journey to the home of his cousin and remained there until January 2016, without incident, although he was led to believe that his relative was looking for him.  The Applicant returned very briefly to collect his personal belongings and then flew from Lahore to an unidentified location before arriving in Hong Kong, illegally by boat, on 13 January 2016.  In the meantime, the land dispute between the two parts of the family has been referred to a Lands Tribunal and the land in question has been left vacant pending the outcome of those proceedings.

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:

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 of the Director

8.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence and correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was represented and given every 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.  He found the future risk of harm, or of being killed, was low given the fact that, according to the Applicant, there had been just one incident where he had been the subject of an assault and his injuries had not been life threatening.  When he left his home village, he had not been followed and the possibility of relocation was self-evident.  In any event this was a personal dispute between two branches of the same family over land which was owned by the Applicant’s father and not the Applicant himself.  Subsequent to these events the matter was in the process of being negotiated in the proper manner.

Decision of the Adjudicator

9.The Adjudicator decided to consider the appeal on the papers as the Grounds of Appeal included no new material and, given the very simple set of facts relied upon, none of the relevant criteria in ST v Betty Kwan & Ors CACV 115/2013 indicated that further enquiry or submissions would be necessary.  He did so with the appropriate legal principles in mind.  He went on to analyse the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles including the burden and standard of proof.  He confirmed the views of the Director and he fully explained why he had done so, with due consideration to all relevant material.

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 Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by that body when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review as such.  The Applicant simply maintains that the decision of the Adjudicator was unfair and unreasonable.  He does not set out why that is the case.  He has not complained of any actual procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  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 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.  This was a very simple matter based upon a private inter-familial dispute which is currently in negotiation on an apparently amicable basis.  Despite its apparent lack of merit, the Director and the Adjudicator considered the claim with reference to all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There has been no suggestion that the Applicant had not been properly heard or given the opportunity to fully explain his case.  Nor has there been any suggestion that he had other material which he wished to put before the board.  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 7^th day of September 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