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

HCAL 109/2018

[2018] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 109 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 on 13 May 2012, from Pakistan via China and was arrested by the police on the same day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 15 May 2012.  His NRF claim form was submitted on 16 June 2015.

2.The Applicant attended a screening interview on 7 August 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 21 August 2015.  The adjudicator of the TCAB, Mr Ian Candy (“the Adjudicator”), heard him on 31 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 23 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 January 2018 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 the Peshawar region of Pakistan on 14 March 1989.  He left school in 2008 and worked overseas in Cyprus between 2009 and 2011.  The Applicant’s village is close to a Taliban stronghold.  When the Applicant returned from Cyprus, he worked in a grocery store.  In early March 2012, five armed Taliban males attempted to recruit him in his shop on two occasions.  The Applicant refused and received death threats as a result, although the men left thereafter.  These incidents were not reported to the police.  At the end of March 2012, a group of eight to nine members of the Taliban visited him in the shop and when he refused to join them, he had his arm broken and threats to kill him if he did not capitulate.  The Applicant said he attended a local hospital and had his arm put in a cast and was hospitalised for 15 days.  After his discharge, the Applicant made a report to the police and a First Incident Report was registered.  In the ensuing period, the Applicant remained hidden in the home of a friend and checked upon the progress of his complaint but there was none.  Whilst in hiding, the Applicant says that members of the Taliban went to his home on several occasions to find him.  It was at this point that the Applicant decided to come to Hong Kong.

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.As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with by the Board.

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 found the account of the Applicant vague despite a narrow set of facts and he felt it unlikely that the Applicant would be an in-patient of a hospital for 15 days when he had suffered only a broken arm, which had been placed in a cast on the same day.  The Adjudicator disbelieved him. Accordingly, the applicant had not satisfied even the low standard of proof required of him.

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 19^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