Mehmood Ikhlas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1104/2017

[2018] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1104 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 22 October 2013 from China and was arrested by the police on 15 January 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 January 2014.  He was released upon recognisance on 6 February 2014.  His NRF claim form was submitted on 16 October 2015.

2.The Applicant attended a screening interview on 8 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 February 2016 and by Notice of Further Decision (re BOR 2) on 28 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) against both Decisions on 3 February 2017 which was out of time by almost a year from the Decision and over two months from the Further Decision.  The Adjudicator of the TCAB, Ronald Cheung, considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 10 August 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 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 on 1 May 1985 in Sakrana, Rawalpindi.  He is single and a Sunni Muslim.  He is not a member of any political party.  Between 2003 and 2010, the Applicant worked as a freelance truck driver and was thereafter unemployed until 2013.  His claim arises out of a land dispute with a Shia Muslim “MN”, who was a member of the Pakistan Muslim League-N (“PMLN”).

5.The land in question had originally been owned 75/25 between the Applicant’s father and R.  R transferred her ownership in the land to the father and in return received part of the crop.  MN was R’s brother and wanted the land transferred back to R, so that, upon her demise, MN and his family would inherit it.

6.The dispute first arose in mid-2013, when MN and his two sons threatened to kill the Applicant’s father unless he transferred the land beck to R.  A report was made to the police but as this was a private matter, the police refused to file a First Report (“FR”).  MN repeated his threat four days later and once again the family sought to file an FR but the police refused for the same reason as before.

7.As a result of the threats the Applicant and his brother left the village but the father remained behind to look after their property interests.  The Applicant found work in a factory in Lahore and lived in the factory dormitory.  There were no further incidents during the three months in which the Applicant worked in Lahore although his brother had ended up in a fight with MN in his home village in August, during which MN once again threatened bad consequences to the Applicant’s family.  During this period, the applicant’s father remained in the family home and was not harmed.

8.The Applicant fled to Guangzhou on 9 October 2013 on the strength of his own passport and entered Hong Kong on 22 October illegally.

The non-refoulement claim

9.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 a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10.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

11.The applicant seeks to review the Decisions of both the Director and the Adjudicator. 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.

Decision of the Adjudicator

12.The Applicant failed to provide a satisfactory reason for the delay in submitting his Notice of Appeal against the Decision and Further Decision of the Director as can be seen from the findings of the Adjudicator at paragraphs 19 and 20 of his Decision.  The Adjudicator analysed the legal principles relating to late filing and he canvassed the appropriate authorities. I the absence of any explanation and taking into account the papers before him, he cannot be criticised.

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 Decision of the Director of Immigration.  The Applicant has not endeavoured to appeal the decision of the Adjudicator as to his refusal to allow filing out of time.  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.This Applicant has exactly the same Grounds of Review as Mirza Muhammad Mohsin in HCAL 1109/2017.  The Applicant submitted the following Grounds:

1) the Director failed to consider the concept of state acquiescence, or extended state acquiescence;

2) he made insufficient enquiry;

3) failed to provide adequate reasons as to the decisions made;

4) failed to investigate the COI material;

5) failed to place weight on relevant information;

6) placed weight on irrelevant information;

7) failed to consider a consistent system of human rights violations;

8) placed weight on irrelevant matters, or on inaccurate or incorrect facts;

9) failed to call for psychological or psychiatric reports;

10) applied the incorrect standard of proof;

11) provided no reasonable basis for rejecting the Applicant’s credibility;

12) the decision maker was not the interviewer; and

13) there was no proper basis for consideration of internal relocation.

15.In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support.  This has not assisted him as it is unclear if he intends those same grounds to be applied to the refusal to allow him to appeal out of time.  The Applicant has a duty to state the grounds of his intended judicial review succinctly and to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  Merely reciting oft cited phrases from the authorities is of little use to the court without more.

16.This was a private land dispute between the Applicant’s father and MN involving three minor incidents, two of which were verbal threats only.  Grounds 1, 7, and 9 are not relevant to the factual basis of his claim.  These grounds are without merit.  As far as Ground 2 is concerned, the Applicant was the subject of interview by the Director.  If there was further information he wished to submit for consideration he was given an opportunity to do so and could have raised new material before the Director, which he did not do.  The burden is upon the Applicant to make out his case and it is not for the decision maker to guess what that case is.  Ground 2 is also without merit.  For the reasons given above at paragraphs 11 and 12, above, Grounds 3 to 6, 8, 10, 11 and 13 are also wholly without merit.  As for Ground 12, the interviewer held the delegated authority to act on behalf of the Director and this is no longer appealable in any event.

Conclusion

17.I have considered the papers and grounds carefully.  I have not found any error of law or procedure.  Quite the opposite.  The Adjudicator was at great pains to explain his reasoning in respect of the legal principles applied to his decision.  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 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.  The Adjudicator took the Applicant’s case at its highest when applying the criteria applicable to granting an extension of time. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

18.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 November 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