Naseer Tarab Ul Hassan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 772/2017

[2018] HKCFI 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 772 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 April 2015, and surrendered to the Immigration Department on 26 May 2015.  He was released upon recognisance on 24 June 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 26 August 2015.  He was later arrested by the Immigration Department on 24 June 2016 for taking employment in Hong Kong and was convicted of the offence and sentenced to 15 months’ imprisonment on 28 July 2016.  The Applicant was released from prison on 22 April 2017, and was transferred to the Immigration Department where he remains on remand.  His NRF claim form was submitted on 8 June 2017.

2.The Applicant attended a screening interview on 16 June 2017.  The Director of Immigration (“the Director”) dismissed his claim (including that under BOR 2) by Notice of Decision (“the Decision”) on 21 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 3 July 2017.  The Adjudicator of the TCAB, Ms Susan Marie Pinto, heard him on 15 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 20 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 October 2017 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 Punjab in 1991.  He is a Muslim (Sunni) and belongs to the Rajport ethnic group.  The Applicant is single and has no children of his own.  He received around ten years of education up to class 10 in Pakistan before working as a quality checker between 2008 and 2013.

5.The Applicant bases his claim on several events.  The first occurred during a rally in 2013, which had been organised illegally by a group of Shia Muslims.  The Applicant asserts that since the rally was organised illegally, many Sunni Muslims protested against it.  During the rally, Shias started to throw stones at the Sunnis.  The Sunnis, including the Applicant, reciprocated.  He was uninjured on this occasion.  Following this, the Applicant claims that he was shot in the leg by a Shia, after he and a group of men got into a heated argument with the Applicant and his friends.  The Applicant was hospitalised, but even after release, relied upon friends for support until his full recovery in mid-2014.  The altercation was never reported to police for fear of corruption and that they would be of no assistance.  In order to avoid the risk of further attacks, he moved to his friend’s house in Madina Town.  He moved between friends’ houses every few months, upon hearing that Zaigham and another man were looking for him, but no further harm came to the Applicant.  At the end of 2014, he decided to leave Pakistan for his own safety, and arranged to travel to China.  He arrived in China on 22 March 2015, before entering Hong Kong illegally by boat on 15 April 2015.  Communication with friends in Pakistan has revealed that Zaigham and Hussain are still looking for him.

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 and further decision of the Director

8.The Director analysed the Applicant’s claim on all applicable grounds as outlined above.  He considered a range of documentary evidence as to the general situation in Pakistan at present, including information which corroborated that Applicant’s concerns over police corruption.  This evidence was compared with other sources, suggesting significant reform of policing in Pakistan.  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.  The Applicant did not however provide any supplementary evidence to support 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.  The Director identified that there was no evidence to suggest that Zaighan and Hussain had either planned the attack on the Applicant or indeed intended to kill him at all.  Evidence of ample opportunity for relocation and state protection also contributed to the Director’s conclusion that the risk of torture, persecution or violation of rights under BOR 2 and BOR 2 was minimal.  Finally, the actions of the Applicant were found to be inconsistent with those of somebody who genuinely feared for their life.

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 highlighted that, despite the exercise of determining whether a claim is genuine being a joint endeavour, the onus was on the Applicant to present his case.  He was, however, unwilling to give oral testimony during the hearing.  The Adjudicator was therefore unable to question the Applicant on the reliability of his claim and without further evidence, was not persuaded that the risks posited by the Applicant were credible.  She therefore dismissed the appeal.

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.The Applicant has provided limited grounds of review in that he argues that his claim was decided on “assumptions” and that his detention by the Immigration Department has prevented him from giving evidence.  The Applicant attended a screening interview on 16 June 2017 with the Director and a hearing on 15 September 2017 with the Adjudicator of the TCAB and I am satisfied that he has had sufficient opportunity to present all evidence relevant to his claim.  The fact that he refused to give evidence before the Adjudicator is unfortunate but any prejudice therefrom must be placed at his door.  Notwithstanding these limited grounds and his behaviour below, I have considered all of the papers and found no additional grounds of review.

Conclusion

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 14^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