Uddin Jashim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1114/2017

[2018] HKCFI 1833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1114 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 on illegally on 28 October 2015, having arrived by air from Pakistan but without permission to land.  He was transferred to the Immigration Department and submitted a non-refoulement (“NRF”) claim by way of written representation on 30 October 2015.  Thereafter he was detained in Castle Peak Bay Immigration Centre (“CIC”).  His NRF claim form was submitted on 23 December 2015.

2.The Applicant attended screening interviews on 15 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 February 2016 and by Notice of Further Decision (re BOR 2) on 24 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Anthony WM Yuen, heard him on 30 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 8 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 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 Malah Kalan, Punjab.  He is married with three children.  His eldest daughter is married and lives in Hong Kong.  Between 1994 and 2003, the Applicant worked as a farmer.  Thereafter, he operated a poultry farm between 2003 and 2015.  He is a supporter of Pakistan Tehreek-e-Insaf (“PTI”), which he joined in 2012.  This caused some friction between himself and supporters of the Pakistan Muslim League-(“PML-N”), who won the 2013 General election.  From time to time, members of PML-N would either seek to persuade him to join them or threaten to kill him if he did not.  In 2014, five to ten PML-N supporters came to his poultry farm and demanded protection money, which he paid and continued to pay on a regular basis for fear of being assaulted.  These threats and minor assaults were reported to the police on four occasions.  The police did not progress the complaints because PML-N was in power.  On one occasion, the Applicant was beaten by five men using an iron rod although no bones were broken and the Applicant recovered within a month.  On this occasion, the Applicant maintains that the police did pay attention to his complaint but by now he had decided to leave Pakistan.

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 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.  In so far as the Further Decision is concerned, the Applicant was notified by letter dated 4 November 2016, that his application under BOR 2 would be consider and he was invited 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.  He correctly set out the law and key legal principles including the burden and standard of proof.  He was of the view that the protection racket, to which the Applicant had fallen prey, was not a politically motivated act but a criminal enterprise.  Their aim was to obtain money and not to do serious harm to the Applicant.  The injuries which the Applicant had sustained were not sufficiently serious and the police could be relied upon to afford protection and to pursue the perpetrators.  Lastly, he found the Applicant to be a mature man who would be capable of maintaining a living elsewhere in Pakistan if relocation was the last resort.  That being said, the political situation in Pakistan has been substantially altered in any event after the last General election which was won by PTI.

Leave to apply for judicial review

9.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

10.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and 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

11.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.

12.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