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

HCAL 112/2018

[2018] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 112 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 on 21 May 2014, from China via Lo Wu, but was refused permission to land.  He made a non-refoulement (“NRF”) claim by way of written representation on the same day and was transferred to the Immigration Department on 22 May 2015.  His NRF claim form was submitted on 16 June 2014.

2.The Applicant attended a screening interview on 15 July 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 12 August 2014 and by Notice of Further Decision (re BOR 2) on 17 January 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) in respect of both the Decision and the Further Decision on two separate occasions, hence the delay. The adjudicator of the TCAB, Mrs Helena Lee (“the Adjudicator”), heard his appeals on 30 December 2014 and 17 November 2017.  The Adjudicator refused his appeals on 6 February 2015 and 8 December 2017 respectively.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 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 Kher Ratali on 1 May 1985, is married with two children and a Muslim.  In 2006/7, the Applicant became a supporter of the Muslin Conference Party (“MCP”).  In June 2011, he was approached by members of the Pakistan Muslim League (N) (“PMLN”) asking him to vote PMLN.  When the Applicant refused, they threatened to kill him.  A few days later, the same group assaulted the Applicant with fists and sticks for 25 minutes.  The Applicant was in pain but without any serious injury and did not require hospitalisation. He did not report either incident to the police.  Two days after that, the Applicant was attacked once more and lost consciousness.  When he came round, he found himself tied up in an empty room and was then tortured by the group.  This involved burning his arm with cigarettes, placing a hot pipe on his ankle, hitting his hand with a stick and cutting his fingers with a knife.  After 25 minutes, the Applicant fainted.  He did not obtain medical treatment for his injuries, which healed themselves in five to six months whilst held against his will.  He appears to have been imprisoned for two years, as it was 2013, before he could escape.  In the interim he was required to cook for the group, but was given one meal a day and was occasionally subject to beatings.

5.When he finally managed to escape, the Applicant was initially unaware of his location but made his way to Jhelum, where he lived as a beggar for four to five months.  He did not contact his family or the police but he did return to his home village on one occasion and arranged for someone to collect his passport.  After that, he returned to Jhelum for six to eight weeks and then made his way to China via Thailand before coming to Hong Kong.  He has not been in touch with his family since.

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 Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing on two occasions as his BOR 2 claim was dealt with by her separately and treated both appeals as re-hearings.  She correctly set out the law and key legal principles including the burden and standard of proof.  An oral hearing on 30 December 2014, was arranged to clarify what appeared to be inconsistent evidence.  The Adjudicator was at pains to identify these and to have the Applicant clarify them, although his clarifications did not necessarily help his case.  In the end, the Adjudicator simply did not believe him.  That being the case, he failed to establish his case on any ground to the requisite standard and the Adjudicator explained in detail why that was.

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.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.

11.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.  The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  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.

12.As to 1a), d), e) and 2c) and e), these are not applicable to his claim and are without merit.  As to 1b) and c) and 2 a), these repeat themselves.  As to 1f) and 2b), these once again mirror each other.  The Applicant has not indicated what COI, the Adjudicator failed to consider which was relevant to the facts of his case.  These grounds are without merit.  As to 1g), h), i) and 2d), the Adjudicator clearly did make enquiry but the Applicant was disbelieved.  She gave her reasons for this after properly considering the tests to be applied.  These too are wholly without merit.

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 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 her determinations, which were open to her 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 16^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