Afghan Abdul Qadar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 101/2018

[2018] HKCFI 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 101 of 2018

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 by boat on 12 May 2015, from Nepal via Dubai, Malaysia and China, and was arrested by the police on 15 January 2016.  He was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 January 2016.  He was released upon recognisance on 17 February 2016.  His NRF claim form was submitted on 16 March 2016.

2.The Applicant attended a screening interview on 7 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including BOR 2) by Notice of Decision (“the Decision”) on 17 May 2016 and by Notice of Further Decision (re BOR 2) on 10 February 2017.  The Adjudicator of the TCAB, Ms CKS Lam (“the Adjudicator”), heard him on 1 March 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 29 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is an Afghani national.  He was born in Zurmat on 5 July 1995.  He received five years of formal education and then worked as a shepherd between 2011 and 2014.  He has no political affiliation and has had no connection with the government or the military.  In late 2014, the Applicant witnessed a skirmish between the Taliban and government forces.  A few days later he was questioned by members of the Taliban who thought him to be a government spy.  During this interrogation, he was punched and slapped and warned not to return to the area in question.  He was also asked to join the Taliban but refused and was then punched and slapped again.  He did not require medical attention for his injuries as he received only bruising.  Two days later, a larger group of Taliban visited the Applicant to recruit him and when he refused, they assaulted him and took him to a mountain retreat, where they tied him up and left him for five days.  Whilst he was served two meals a day, he was also assaulted each time he was given a meal and urged to join the Taliban.  Even in the face of threats to kill him, the Applicant refused.  On the fifth day, the Applicant broke free and escaped.  He eventually made his way to Jalalabad, where he remained for a few months without work.  The Applicant did not seek help from the authorities because he maintained that the Taliban would assault his mother and burn down her home if he did.  Thereafter, the Applicant applied for and obtained a passport in order to make his way to China, whereupon he entered Hong Kong illegally.

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 the 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 sent a letter dated 25 January 2017, in which he was informed of the Director’s intention to consider his claim under BOR 2 and he was offered the opportunity to make further representations but he did not do so.

Decision of the Adjudicator

8.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 found a substantial number of inconsistencies within the evidence of the Applicant and gave numerous examples of the unsatisfactory nature of his account including the fact that it appeared to be somewhat embellished when compared to his original claim.  He was disbelieved.  Accordingly, he had not met the requisite burden placed upon him to establish his claim.

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 the 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 28^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