Hussain Ibrar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 333/2018

[2018] HKCFI 2119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 333 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 20 June 2016 from China by boat and was arrested by the police on the same day.  He was referred to the Immigration Department on 22 June 2016.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 23 June, 11 and 27 July 2016.  His NRF claim form was submitted on 8 October 2016.

2.The Applicant attended a screening interview on 17 October 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 31 October 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Li Wai-chi (“the Adjudicator”), heard his appeal on 10 January 2018.  The Adjudicator also considered his appeal on all applicable grounds including BOR 2.  He refused his appeal on 9 February 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 March 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 5 January 1991, in Gasipur, Kashmir and received eight years of formal education.  He is single.  In 2006, the Applicant was employed as a motor cycle worker.  Between 2012 and 2016, he worked as a technician in Saudi Arabia.  The Applicant’s claim arises out of a dispute over the purchase of a motorcycle by the Applicant’s brother from a person named Imran Ghazanfar (“Imran”).  In 2008, Imran and two others had come to the home of the Applicant to complain that the motorcycle had been sold at too low a price.  A dispute arose between the three of them and six members of the Applicant’s family, all of whom were older than the Applicant.  The Applicant was not involved in this incident but witnessed the dispute.  According to the Applicant, Imran and his two friends were armed with pistols.  He does not know what happened but all of a sudden, one of Imran’s group, was shot with one of their own pistols.  Imran and his surviving friend went to the police and filed a complaint against the Applicant’s family but this did not include any allegations against the Applicant.  His brother was charged with murder and the remaining five members of his family were charged with assault.  All six members were detained for a substantial period of time before being released upon bail.

5.In the interim, as the Applicant was the youngest member of the family, he believed that Imran wished him dead and therefore went to stay with an aunt for four months and thereafter with a sister for a further year, during which time nothing happened.  Once his family members were released on bail, the Applicant returned to his home village to live peacefully for the next two to three years.  The Applicant’s brother, who had been charged with murder, was eventually released on bail.  This increased tension between the Applicant’s family and Imran and others, resulting in threats to his family members but no actual harm was caused to anyone and he was not threatened personally.  The Applicant went to Saudi Arabia to work in 2012 as he believed his life was in danger but when the work situation in Saudi Arabia deteriorated in 2016, he returned to his home village in Pakistan.  It is at this point that the Applicant believes that he was chased on his motorcycle by Imran and a friend although he managed to escape and later he says he was shouted at by Imran but yet again managed to avoid him.  Both of these incidents were reported to the police by the Applicant.  It was as a result of these two incidents that the Applicant decided to leave Pakistan and go to China.  He remained in China for two days and then entered Hong Kong illegally by boat on 20 June 2016.

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.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator pointed out the inherent inconsistencies in the evidence of the Applicant and sought an explanation for them.  Those explanations did not assuage the Adjudicator’s view that the Applicant was not the subject of any threat from Imran and that he had at no time been harmed or was likely to be harmed if he returned to his home village.  He agreed with the Director that this was a private and not a political dispute which was nothing to do with the Applicant. Despite indicating that he would submit additional documentary proof of the allegations he had made, the Applicant had failed to do so.  In all, he found the allegations to be inconsistent, unsupported and unreliable.

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 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.The Applicant has submitted 15 grounds of review.  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.  In several respects they are wholly irrelevant and bear no relation to the matters at hand.  The Applicant has a duty to state the grounds of his intended judicial review and why 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.  All of the Applicant's grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case. In addition, the interviewing officer was delegated to carry out his function by the Director in a lawful and proper manner.  There is no issue of irregularity in that respect.

Conclusion

12.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 his determination, which was open to him on the facts and eminently reasonable.

13.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