Shah Sahadat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1122/2017

[2018] HKCFI 1872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1122 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 16 May 2014, by boat, from China and was arrested by the police on 28 August 2014, for taking up employment whilst unlawfully remaining in Hong Kong.  He was convicted of that offence on 30 August 2014 and given 15 months’ imprisonment.  Whilst in custody, the Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 11 May 2015, a month before his discharge from custody on 27 June 2015.  He was the subject of a Removal Order on 27 July 2015, whilst in the charge of the Immigration Department.  He was released upon recognisance on 7 August 2015.  On 1 September 2015, he was once again arrested for taking up employment and for using a false ID.  He was sentenced for those offences on 26 October 2016 and was given 18 months’ imprisonment.  His NRF claim form was submitted on 5 November 2015 whilst he was serving his second sentence.

2.The Applicant did not attend a screening interview.  The Director of Immigration (“the Director”) considered his NRF claim and his answers to a list of questions dated 16 January 2017. He dismissed his claim on all grounds, by Notice of Decision (“the Decision”) dated 21 January 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 February 2017.  The Adjudicator of the TCAB, Mr Anthony WM Yuen, heard him on 20 October 2017 and refused his appeal on 6 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 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 Mian Dheri on 1 February 1984.  He is 34 years old, a Muslim and married.  His wife remains with her family in Pakistan.  He received education up to Class 10 and originally worked on the family farmland but in 2013 he commenced work as a driver for Suleman and Zaman, who were business partners in the clothing trade, although the Applicant suggests that they were, to his knowledge, also drug traffickers.  For his part, the Applicant simply drove goods between Peshawar and Rawalpindi.  In mid‑2013, on one such journey, the Applicant suffered a breakdown during which he discovered that his cargo contained drugs.  As a result, the Applicant informed Zaman of what he had discovered but, disobeying his orders, he left the vehicle at the side of the road and returned home by bus.  Zaman accused the Applicant of losing cargo worth millions of Rupees.  The drugs were subsequently confiscated by the police which led to a threatening phone call from Zaman in which he demanded repayment for his loss or, alternatively, that the Applicant worked for him (presumably as a trafficker).  As the Applicant refused to do so, Zaman threatened to kill him.  In July 2013, the Applicant was kidnapped and assaulted by Zaman’s henchmen and beaten with rods four to five minutes.  They threatened him further and demanded he repay Zaman or worked for him.  The Applicant agreed to the latter and was released.  He went to hospital but did not suffer serious injuries.  He did report the incident to the police but no follow up action was taken by them.  The fact that he had made such a report was drawn to the attention of Zaman and he further threatened to kill the Applicant.

5.In fear for his life, the Applicant fled Pakistan, but first moved to Ghazi City where he remained for some four months without incident.  During this time, he was informed that Zaman was still searching for him.  In November 2013, the Applicant moved to Rawalpindi, from where he fled to the Mainland.  He stayed in Guangzhou for six months before entering Hong Kong illegally by boat on 16 May 2014.

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 the 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 did not interview the Applicant as he was currently serving his second sentence of imprisonment at the time that he submitted his claim.  The Applicant makes no complaint about this.  The Director considered a wide range of documentary evidence including the answers to questions put to the Applicant and the COI.  He correctly set out the law, key legal principles and made reference to relevant materials.  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.

Decision of the Adjudicator

9.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.  The Applicant adopted all of the information in the Hearing Bundle and confirmed that it was true and correct.  He also answered questions from the Board but did not submit any additional information.  The Adjudicator noted that despite the apparent criminal background of both Suleman and Zaman and the threats to kill, the Applicant was assaulted only once and did not receive any serious injuries.  Whilst he noted that the Applicant had said that Zaman belonged to the Pakistan Muslim League (N), there was no evidence to show that he held any particular position or that he would have influence over the police especially as he was, according to the Applicant, a major drug dealer and the police had, apparently, confiscated millions of Rupees worth of drugs.  Even if Zaman had the influence suggested, there was every indication that the Applicant could reasonably be expected to relocate within Pakistan as he had previously had no problem when he had lived in Ghazi City.

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.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

12.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.  Although the applicant did not attend a screening interview, he answered the queries raised by the Director and made no complaint to the TCAB about this issue.  He was provided with an oral hearing before the Board and did not seek to add any information additional to that which was considered by the Board.  Despite the onus being upon the Applicant, 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.

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 5^th day of October 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