Mirza Muhammad Mohsin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1109/2017

[2018] HKCFI 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1109 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 15 September 2009, from China and was arrested by the police on 7 October 2009.  He was transferred to the Immigration Department on 9 October 2009 and submitted his non-refoulement (“NRF”) claim by way of written representation on 10 October 2009.  He was released upon recognisance on 19 October 2009.  His NRF claim form submitted was submitted on 4 December 2014.

2.The Applicant failed to attend screening interviews on 5 January and 9 March 2015 due to ill-health. He provided a medical certificate in support of both occasions.  A further interview set down for 14 April 2005, could not be undertaken owing to the ill-health of the duty lawyer.  On 8 May 2015, the Applicant once again failed to attend a further interview and did not submit evidence in support of his contention that he was unwell.  The Director of Immigration (“the Director”) gave the Applicant the opportunity to make further submissions upon the papers by way of a letter dated 12 May 2015, which were eventually submitted, after an extension of time, on 3 June 2015.  He was asked to attend an interview on 7 July 2015, which he, once again, failed to attend.  The Director therefore considered his claim on the papers. He dismissed the Applicant’s claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 July 2015 and by Notice of Further Decision (re BOR 2) on 22 February 2017.  The Applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 28 July 2015.  The Adjudicator of the TCAB, Mr Kevin Browne, heard him on 2 May 2017 and refused his appeal on 17 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking judicial review of the Decision of the Director.  He 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 Mohalla Kasra.  He is single and has had 15 years of formal education including a diploma in Telecommunications but between 2005 and 2009, he was self-employed looking after family farmland.  This claim arises out of a land dispute with someone called Siddique, who was the owner of adjacent farmland and sought to claim ownership of the land belonging to the Applicant’s family.  In 2009, Siddique and two others attacked the Applicant and Siddique wounded the Applicant in the arm.  The wound required 25 stitches and hospitalisation.  Despite that fact, the Applicant did not report the attack to the police.  Instead, he fled to a friend’s home and after being further hospitalised for treatment, he left Pakistan to come to Hong Kong via China.

The non-refoulement claim

5.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.

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 gave the Applicant every opportunity to attend for screening.  He was represented by the Duty Lawyer scheme and therefore understood the need to attend and the procedure to be adopted if he did not do so.  Having failed to attend, the Director provided the Applicant with an opportunity to make further submissions and to answer the issues which had arisen from the documents already submitted. This he did, although only after an extension of time.  The Director was therefore in possession of everything the Applicant wished to be known at that stage.  He analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Pakistan at present and other more local news.  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, which he did.  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 informed by letter of 3 February 2017, that his claim under BOR2 was to be considered and he was afforded the opportunity to make further submissions, which he declined to do.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  The Adjudicator was the only person who was actually able to interview the Applicant.  That interview was thorough, given the fact that the Applicant had failed to attend previously.  The Adjudicator was meticulous in explaining the procedure to the Applicant.  He was well aware of what materials were before the Adjudicator and that he had an opportunity to lay other materials before him.  He made no complaint about those materials to the Adjudicator.  This was an intelligent, well-educated man with a Diploma in telecommunications.  At the end of the interview he made no complaint about the procedure adopted.  In his findings, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof.  He fully canvassed appropriate COI materials and reminded himself not to be affected by the commentary on those materials by the Director.

9.Having carefully considered the Applicant’s case, the Adjudicator did not consider his experience with Siddique to amount to persecution for a Convention reason, even upon the low standard of proof required.  This was a single attack arising out of a private dispute over land.  At no time were state actors involved in any capacity.  The dispute is a historic one, the Applicant has now been in Hong Kong for eight years and the land in question has since been tenanted with profits payable to the Applicant’s family.  Even if the Adjudicator were wrong in these respects, the dispute was a local one and the Applicant was a well-educated man who could reasonably relocate elsewhere in Pakistan.

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.  I understand this to be an application to apply for leave to judicially review of both the Decisions of the Director and the Adjudicator as the Applicant refers to the Director and the Board in his affirmation in support.  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.The Applicant submitted the following Grounds:

1)  The Director (and presumably the Adjudicator) failed to consider the concept of state acquiescence, or extended state acquiescence;

2)  he made insufficient enquiry;

3)  failed to provide adequate reasons as to the decisions made;

4)  failed to investigate the COI material;

5)  failed to place weight on relevant information;

6)  placed weight on irrelevant information;

7)  failed to consider a consistent system of human rights violations;

8)  placed weight on irrelevant matters, or on inaccurate or incorrect facts;

9)  failed to call for psychological or psychiatric reports;

10)  applied the incorrect standard of proof;

11)  provided no reasonable basis for rejecting the Applicant’s credibility;

12)  the decision maker was not the interviewer; and

13)  there was no proper basis for consideration of internal relocation.

12.In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support.  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.  Merely reciting oft cited phrases is of little use to the court without more.

13.This was a private dispute involving one incident.  I fail therefore to see on the papers agreed by the Applicant with the Adjudicator, how Grounds 1, 7, or 9 come into play.  These grounds are without merit.  As far as Ground 2 is concerned, the Applicant failed to attend consistently on multiple occasions and on the latter two occasions without providing any excuse.  If there was further information he wished to submit for consideration he was given an opportunity to do so and could have raised new material before the Adjudicator, which he did not do.  The burden is upon the Applicant to make out his case and it is not for the decision maker to guess what that case is. Ground 2 is also without merit.  For the reasons given above at paragraphs 8 to 10, Grounds 3, 6, 8, 10, 11 and 13 are also wholly without merit.  So far as Ground 12 is concerned the interviewer (had there been a successful interview by the Director) would have acted on behalf of the Director under a delegated power.  The only interview to take place was by the Adjudicator and he made the decision of the Board.  This too is without merit.

Conclusion

14.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 very high standard of fairness throughout.  The Applicant was given the benefit of the doubt on several occasions and appears to have sought to abuse the system.  It ill-behoves him to now complain that material has not been properly considered when he had the opportunity to put his case but both declined to do so and affirmed that he had nothing else to submit.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant as best they could in the prevailing circumstances and considered all relevant criteria.  They gave the Applicant a more than 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.

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 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