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

HCAL 187/2018

[2018] HKCFI 2491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 187 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 6 June 2009 and was arrested by the police on 7 June.  He was transferred to the Immigration Department on 9 June.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 June 2009 and withdrew it on 17 November 2009.  It was re-opened on 9 March 2010.  His NRF claim form was submitted on 2 September 2015.

2.The applicant attended a screening interview on 8 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 3 May 2016 and by Notice of Further Decision (re BOR 2) on 3 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 13 May 2016.  The adjudicator of the TCAB, Ms Corrina Tai (“the Adjudicator”), heard his appeal on 19 January 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 2 February 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 February 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 on 3 January 1977, in the Punjab.  He is married with a wife and daughter who live in Pakistan.  In 2005, the applicant went into partnership with MS but the business faltered and closed down in 2008.  MS blamed the applicant for the collapse and complained that the applicant had embezzled money from the firm.  After the business ceased operating MS demanded repayment of the monies and threatened the applicant although this was not done face to face.  In late 2008, MS and another man attacked the applicant demanding repayment of monies and threatening to kill him.  The applicant escaped unharmed.  Later on the same day, MS and 15 to 20 men came to the applicant’s house and assaulted him with wooden sticks which resulted in the applicant losing consciousness.  He was taken to hospital for treatment and found that he had broken nine teeth. Both incidents were reported to the police but no action was taken.  On 25 December 2008, the applicant maintains that a police officer demanded that the applicant pay back MS otherwise he would be framed for a criminal offence.  His attempts to report this to another police station did not help.  The applicant believes this is because MS has two brothers who are also police officers.  The applicant moved with his wife and daughter to Burhan but believes that MS knew of his whereabouts and therefore he fled to Islamabad leaving his wife and daughter behind.  From there he went to Rawalpindi, each time believing that MS had been able to trace him.  Finding no safe refuge in Pakistan, 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 a 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 both 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 Director

7.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

8.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 Adjudicator engaged with the applicant and discussed the situation in Pakistan and the availability of relocation and state protection despite the fact that he had stated he did not wish to answer any questions and would rely upon the bundle as it stands.  He stated he did not wish to add anything nor did he wish to make any final submissions.  The Adjudicator found the basis of claim improbable given the applicant’s educational and financial background.  There was no documentary evidence in support of the alleged business.  This was, if it existed, a private dispute and a dispute that was unlikely to escalate to the level suggested.  Nor was there any evidence to support the reports to the police and their lack of assistance.  Even taken at its highest, he had come to no harm when he relocated and his fear of attack from MS was based upon hearsay.

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 Decision of the Adjudicator.  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 him.

Grounds of review

10.There were no grounds of review.  The applicant states that the Decision of the Adjudicator was “unfair and unreasonable” without more.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  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.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure on the part of the Adjudicator.  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 and his reluctance to answer questions, 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.  She covered all of the points raised.  There is no criticism of her determination, which was open to her 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 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