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

HCAL 1159/2017

[2018] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1159 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 28 August 2014, from China and was arrested by the police on 30 August 2014.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 September 2014.  He was released upon recognisance on 28 September 2014.  His NRF claim form was submitted on 19 April 2016.

2.The Applicant attended a screening interview on 29 June 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 July 2016 and by Notice of Further Decision (re BOR 2) on 5 September 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 10 August 2017.  The adjudicator of the TCAB, Mr Bernard Whaley (“the Adjudicator”), heard him on 1 November 2017 and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 15 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 29 December 2017.  He was allowed a further 42 days to progress an application for legal aid, which did not materialise.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Pakistani national.  He was born in Khari Shareef and had five years of formal education. He is single and has no political affiliations.  Between 2006 and 2011, he worked as a welder in a family run business.  In 2011, the Applicant met Maria and commenced a secret relationship with her.  It was not long before the relationship was discovered.  Maria’s family disapproved as she was to marry someone else and she was of higher social status.  As a result, the Applicant and his family were assaulted with wooden sticks by members of Maria’s family.  The family were taken to a local clinic and their wounds were treated, although no sutures were required.  The matter was reported to the police but, according to the Applicant, it was not recorded because his family were unable to pay the requisite bribe.

5.There were no further assaults in 2011 save for verbal threats for the Applicant to leave his village.  The families sought to mediate.  In November 2012 however, the Applicant was arrested on a complaint of rape.  The victim was Maria.  The Applicant was detained for 17 days.  He received daily visits from his father and has not complained of ill treatment.  No charges or prosecution ensued but the Applicant was released on condition that he left the area.  According to the Applicant, the police had been bribed by his father in order to secure his release and the police had threatened to kill him if he returned.  The Applicant therefore left his home village and stayed elsewhere in Pakistan for several months before deciding to leave Pakistan for Hong Kong as a result of a telephone call from Sabah who indicated that she would marry no one but the Applicant.  As the Applicant did not wish to marry Sabah and would be at risk from her family as a result, he left the country.

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 and Further Decision of the Director

8.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, 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 sent a letter dated 13 July 2017 and made further submissions in reply on 25 July 2017.  These submissions covered events after the Applicant fled Pakistan and had no corroboration.  They did not add to the main theme of the Applicant’s claim which was the threat from Sabah’s family if he did not return to marry her.

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 said that he would submit documents verifying his account, including a 2015 warrant of arrest, but had not done so.  In his letter to the Director under BOR2 dated 25 July 2017, the Applicant had made further submissions, which came under scrutiny from the Adjudicator and were found wanting.

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.At first blush, it would appear that the Applicant has submitted 15 grounds of review.  However, they can be synthesised into the following complaints:

I. The Adjudicator acted irrationally and/ or unreasonably, in that he:

a. failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;

b. failed to place weight on relevant information;

c. placed weight on irrelevant information, or incorrect or inaccurate facts;

d. failed to consider a consistent system of human rights violations;

e. failed to consider if state protection exists in Pakistan;

f. failed to consider the COI;

g. used an improper basis for consideration of internal relocation;

h. failed to provide adequate reasons; and/or

i. there was no proper basis for rejecting the Applicant’s credibility.

II. There was procedural impropriety in that the Adjudicator;

a. made insufficient enquiry;

b. failed to investigate COI;

c. failed to call for psychological or psychiatric reports;

d. applied the incorrect standard of proof; and

e. the procedure was irregular as the decision maker was not the interviewing officer.

12.There are no particulars provided for any of the Applicant’s grounds.  They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the Applicant and a waste of judicial time.  It is incumbent upon the Applicant to make good his grounds, which he has failed to do.  Without more, the court is restricted to that which is self-evident from the papers.  All of the Applicant's grounds are without merit for the reasons given above.

Conclusion

13.I have considered the papers and grounds 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.

14.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 12^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