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

HCAL 239/2018

[2018] HKCFI 1937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 239 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 23 June 2008, by boat from China and was arrested by the police on 29 December 2008, for illegally remaining and being in possession of a forged identity card.  He was convicted of those offences on 7 January 2009 and received a sentence of 15 months’ imprisonment.  Whilst in prison, he submitted a non-refoulement (“NRF”) claim by way of written representation on 14 January 2009.  He was discharged from prison on 28 October 2009 and transferred to Castle Peak Bay Immigration Centre (“CIC”).  He was released upon recognisance on 24 December 2009.

2.On 21 August 2010, the Applicant was arrested once again, this time for taking up employment and was sentenced to six months’ imprisonment on 27 September 2010.  He was discharged from prison on 10 March 2011 and once more transferred to CIC, and then released upon recognisance on 27 April 2011.  His NRF claim form was submitted on 2 September 2014.

3.The Applicant was asked to attend a screening interview on 24 November 2014, but the interview could not proceed as the Applicant was ill.  A further screening interview was scheduled for 5 December, but the duty lawyer could not attend and was unavailable thereafter from 6 December to 1 March.  A further screening interview was scheduled for 5 March, which the duty lawyer could also not attend.  A further interview was arranged for 11 March, which both the Applicant and the duty lawyer attended.  However, this interview could not go ahead as the Applicant had a toothache.  Pending a suitable interview date, the Applicant was reminded to submit all documentation which he had indicated he wished to rely upon and was provided with a list of questions to answer (“LOQ”) by 25 March 2015.  The Applicant returned his answers to the LOQ but asked for an extension of time to make further submissions and for an oral hearing.  By 27 March 2015, the Applicant had failed to submit his supporting documentation and was informed that the assessment would go ahead without it.  He requested an extension of time for submissions and was given until 18 May 2015.  A screening interview was arranged for 15 June, but once again the duty lawyer could not attend.  An interview was finally arranged for 30 June 2015.  On that date, the Applicant sought a further adjournment but his application was rejected.

4.Owing to several extensions of time to submit further documentation, the Director of Immigration (“the Director”) did not deal with the Applicant’s claim until 2016.  On 17 August 2016, he dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) and by Notice of Further Decision (re BOR 2) on 28 July 2017.  The adjudicator of the TCAB, Ms Alexandra Lo (“the Adjudicator”), heard his appeal on 24 November 2017 and refused his appeal on 2 February 2018.

5.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

6.The Applicant is a Pakistani national.  He was born in the Punjab on 1 January 1980.  He is single, a Muslim and of the Kumhar caste.  He has variously described himself as a carpenter, painter and canteen keeper, although he denied the former when he was in interview.  His claim arises from a dispute he had with someone called Munir, who was a fellow villager but extremely influential.  In July 2005, the Applicant sought to separate a group of men who were fighting.  One of those men was Munir’s son.  In August 2005, the Applicant was accused of being complicit in the murder of his son by the others involved in the fight.  He surrendered to the police on 16 August 2005 and was kept in a cell.  During his detention he asserts that he was whipped by the police for 25 minutes to obtain a confession and the whereabouts of the other offenders.  The Applicant remained silent.  Four hours later, he was tortured again.  This time he was spread-eagled on the ground and officers stepped on his arms, pressed on his neck, sat on his back and tied his ankles.  His legs were raised and his feet were beaten with bamboo for 30 minutes.  The Applicant still would not confess.  On 18 August, the Applicant was interrogated once more.  He was suspended upside down and thereafter had his hands tied behind his back and his neck tied to his legs whilst the police whipped him for 30 minutes.  On 20, 24, 25, 26, 29 and 30 August, further torture was carried out, during which the Applicant had his arm fractured and a string was wrapped around the Applicant’s penis to stop him urinating.  The Applicant was finally brought before the court at the end of August and formally detained for another 14 days.  No complaint about his ill-treatment was made to the court.

7.In early September, the Applicant was tortured once more having nails forced into his foot.  He was later brought before the court and charged with murder and wounding.  He was then remanded in the Gujrat jail, he eventually faced trial and was acquitted on 18 January 2007.  Once released, the Applicant was subject of a threat by the dead man’s brother and therefore fled to Jhelum, where he arranged to obtain a new passport.  Even in his hiding place, the Applicant was shot at by some men and although he explained the situation to the local police, they did not help.  He decided to travel to China to seek help from the UNHCR there but did not do so.  Instead, he entered Hong Kong illegally by boat on 23 June 2008 and was eventually arrested on 29 December of that year.

The non-refoulement claim

8.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.

9.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

10.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Pakistan at present.  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.  He maintained that he could not seek any form of redress in Pakistan for fear of reprisal.  In coming to his decision to reject his claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner.  There were some substantive conflicts within the evidence and the documentation provided to the Director.  The additional documentation indicated the arrest and circumstances of the alleged offending which arose out of a private dispute and resulted in the death of one man by gunshot wounds and the wounding of another.  The medical documentation, although extensive, was found to be irrelevant to the circumstances of the claim, save for the injury to the sole of his right foot about which the Director gave the Applicant the benefit of the doubt.  The Director found that re-location was possible and that the social standing of the complainant was not so great as to make this unrealistic.  I note in particular, that the Applicant identified specific COI that he wished the Director to take into account and that the Director did so, as well as considering other up to date information.  In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon.  He supplied further submissions on 11 July 2017.  It was the attested judgment of the murder trial.  The chronology therein undermined some of the evidence of the Applicant in respect of his continued fear from Munir, who had apparently threatened him after the trial, but who, in fact, had died at some time prior to the trial of the Applicant.  In any event, it was not relevant to the issues under BOR 2.

Decision of the Adjudicator

11.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 obvious and detailed discrepancies between the Applicant’s claim and the documentation submitted by him to the Director, were the subject of scrutiny.  The Applicant explained to the Adjudicator that the duration and level of torture he endured outside of the dates given in the documentation was because he had surrendered to the police and the early detention was secret and unauthorised.  So far as his suggestion that he had been threatened by Munir after the trial and his release, his references were to the family rather than to Munir in person.

12.The Adjudicator took into account all of the relevant documentation including that highlighted by the Applicant but noted that he had been the subject of fair judicial process within Pakistan despite his lowly social status compared with the status of the victim’s family.  Despite the findings of the Director, the Adjudicator found that the Applicant had given plausible explanations for the most obvious discrepancies in his earlier evidence but still noted that there was no credible evidence of the nature and intensity of the alleged torture.  If it occurred, the Adjudicator found it to be carried out by rogue officers and not as a result of state acquiescence.  There was no direct evidence that the Applicant had been attacked by persons connected to Munir after his acquittal.  He was unable to identify his assailants and he was not physically harmed by them.  Perhaps most importantly, the Applicant indicated he wished to return to Pakistan and marry.  He told the Adjudicator that there had been a rapprochement between his family and Munir’s so that he could now return to his village in safety.

Leave to apply for judicial review

13.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 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

14.The Applicant submits that he was treated unfairly by reason of the fact that he was not provided with legal representation before the TCAB.  He relies upon the judgment of Saunders J in FB & Ors v Director of Immigration & Secretary for Security HCAL 51/2007.  The Applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.  The Applicant has misunderstood the decision of the learned judge.  I refer in particular to paragraphs 213 and 216 of the judgment, which read:

“213. For the foregoing reasons I conclude that by establishing a system in which the petitioner is denied both an oral hearing in respect of his petition and the right to legal representation in the oral hearing, the system does not reach a high standard of fairness. …

216.     It does not follow from the conclusion reached in paragraph 213 that every petition will require both an oral hearing or the petition to be represented at that hearing.  It will be necessary for the Secretary in each case to have regard to the appropriate relevant considerations and to make an appropriate determination.”

15.The fact the Applicant was unrepresented in his appeal has not been shown to be procedurally or factually unfair.  The Applicant was represented before the Director and he had the benefit of an interpreter.  Indeed, the Director went to considerable lengths to ensure that the Applicant was properly represented as is evidenced by paragraph 3 above.  His claim was fully rehearsed at that stage and he makes no complaint in that respect.  His claim upon appeal was a re-hearing of the claim before the Director.  He also had the assistance of an interpreter.  The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.  The Director of Legal Aid refused the Applicant’s claim for legal aid as he is entitled to do.  Nevertheless, the Adjudicator had all of the papers before her as well as the Applicant and he was afforded every opportunity to speak, answer questions and add anything he wished.  Throughout the hearing he was asked whether he understood and he claimed that he did.  He made no complaint.  The Adjudicator, in fact, described him as an intelligent, well-mannered individual and noted that he had thanked the Board for an opportunity to present his case at the hearing.  This ground is not reasonably arguable.

16.Also hidden within the affirmation of the Applicant (paragraph 20), appears to be a further complaint that the Adjudicator failed to properly assess the Applicant’s evidence and COI.  The Applicant has not stated in what way the Adjudicator did this or how any such failure amounted to a ground for judicial review.  I have nevertheless looked very carefully at the procedure, applicable law and reasoning of the Adjudicator and I do not find it wanting.  Far from it.  This ground is not reasonably arguable.

17.Finally, the Applicant objects to the fact that the Director was not present before the Board and his attendance should not have been excused.  He does not explain why the attendance of the Director should have been required and in what way, his non-attendance gives rise to judicial review.  The fact is that the Director’s attendance was excused and that it was done so in a procedurally correct manner.  That non-attendance did not in any way prejudice the position of the Applicant.  There is no merit in this ground.

Conclusion

18.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.

19.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 26^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