Shamroz Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 900/2017

[2018] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 900 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 9 June 2015, from China and was arrested by the police on the same day.  He was transferred to the Immigration Department on 10 June.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 12 June and was released upon recognisance on 6 July 2015.  On 21 September 2016, the applicant was arrested for using a forged identity card and for taking up employment.  He was sentenced to 15 months’ imprisonment on 7 October 2016.  His NRF claim form was submitted on 19 June 2017.

2.The applicant attended a screening interview on 27 June 2017, whilst serving a sentence of imprisonment.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 29 June 2017.  The adjudicator of the TCAB, Chan Ling-ling (“the Adjudicator”), heard his appeal on 20 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 17 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 November 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 Adal Zai Po Hazro, Pakistan.  He had five years of formal education, is single, and worked as a tailor and labourer between 1998 and 2008.  Between 2009 and 2013, he worked in Saudi Arabia.  The Applicant is a supporter of Pakistan Tehreek-e-Insaf (“PTI”) which is now the ruling party in Pakistan under Imran Khan.  He maintains that his difficulties are politically motivated.  In 2015, the Applicant invested in a garment business in Karachi with two colleagues Imran and Hashim.  As the business became more prosperous, the Applicant alleges that members of the Muttahida Qaumi Movement (“MQM”) approached them, as it was operating a protection racquet and wanted money from them or, if not, that they join the MQM.  Several oral threats were made to the Applicant in early 2015 including threats to kill.  Shortly afterwards, the three of them were assaulted with sticks by MQM members which, he says, lasted five to seven minutes with each victim receiving just one to two blows.  The incident was painful but they received no injury and did not require medical attention.  At the time, MQM was the local ruling party and so the matter was not reported to the police.

5.Because of the attack, the Applicant and his colleagues obtained China visas and left Pakistan.  They entered Hong Kong illegally from China.

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.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

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 had before her those papers which were before the Director and the notes of the screening dated 27 June 2017.  The Adjudicator explained the procedure before the Board and, in particular, the consequences which may accrue from failing to answer questions from the Board.  The Applicant said he understood and the Adjudicator noted that he either had nothing to add to certain questions or, in some instances, he chose not to answer.

10.The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof.  She found, and it was conceded on the evidence, that no physical threat had been carried out in the earlier incidents.  She found that the level of alleged threat was not consistent with the ultimate assault and the content of the threat was not logically consistent.  The level of harm the Applicant received amounted to two blows.  The risk of future harm to him if returned to Pakistan was therefore low.  She did not accept this was a politically motivated threat and she noted that he had made no efforts whatsoever to seek state protection nor to locate elsewhere.  Even taking into account the criticisms of the situation in Pakistan, the Adjudicator did not accept that such protection was not available.

Leave to apply for judicial review

11.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 decision of the Adjudicator only.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

12.There were no formal grounds of review.  The Applicant complains that the hearing before the TCAB was unfair without more.  He has not complained of any particular 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.  He did not fulfil this duty.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

13.The Adjudicator made it clear to the Applicant the consequences of failing to answer the legitimate concerns of the Board.  She had before her all of the papers from the screening interview and considered the matter afresh.  The Applicant would have been aware of her concerns and he had the opportunity to answer them if he wished to do so.  She did not find the Applicant to be a credible witness.  There were a number of inconsistencies in his evidence which she detailed in her decision.  His claim was without merit.  In fact, it was extremely weak with no prospect of success and she made that clear, as did the Director.  I can find no evidence that her approach or reasoning were unfair.

Conclusion

14.Despite the fact that the Applicant did not submit any paper grounds of review, I have considered the papers and grounds, such as they are, 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 Adjudicator attempted to engage 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 her determination, which was open to her on the facts and eminently reasonable.

15.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