Iftikhar Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 932/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant entered Hong Kong illegally by boat from China on 11 March 2014 and was arrested by the police on 5 April 2014. He was transferred to the Immigration Department on 7 April. He submitted a non-refoulement (“NRF”) claim by way of written representation on 8 April and was released upon recognisance on 30 May 2014. His NRF claim form was submitted on 17 September 2015.
Cites 2 cases
|
HCAL 932/2017 [2018] HKCFI 2153 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 932 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by The Honourable Mrs Justice Campbell-Moffat:
Observations for the Applicant: Procedural history 1.The Applicant entered Hong Kong illegally by boat from China on 11 March 2014 and was arrested by the police on 5 April 2014. He was transferred to the Immigration Department on 7 April. He submitted a non-refoulement (“NRF”) claim by way of written representation on 8 April and was released upon recognisance on 30 May 2014. His NRF claim form was submitted on 17 September 2015. 2.The Applicant attended a screening interview on 23 December 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 4 January 2016 and by Notice of Further Decision (re BOR 2) on 8 December 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 1 November 2016. The adjudicator of the TCAB, Mr SJ Geizer (“the Adjudicator”), heard his appeal on 10 April 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 3 November 2017. 3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 November 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 in Malakwal in the Punjab. He is a Muslim, Mughal and single. He completed eight years of formal education and thereafter worked as a carpenter. 5.The Applicant is a member of the Muttahida Qaumi Movement (‘MQM’). His claim arises out of friction between MQM and the Pakistan Muslim League (Nawaz) (“PML(N)”). In February 2013, he received a verbal threat seeking to have him join the PML(N), which he refused. In March, he was assaulted by four to five members of PML(N) with sticks and was rendered unconscious. He awoke in hospital with injuries to his head and legs. He had a fractured knee cap. The matter was reported to the police although nothing came of it. At the end of the same year, and some time after the general election, the Applicant was in the MQM offices with several MQM members, when 10 to 15 supporters of PML(N) vandalised the offices. The MQM members were able to escape unharmed. On this occasion the Applicant did not go to the police as he believed that the police supported the ruling PML(N) party. 6.After the MQM office was vandalised, the Applicant moved to Rawalpindi and remained there for three to four months but was led to believe that he was being hunted by PML(N) in his home area. In February 2014, the Applicant received a phone call in which he was led to believe by an unknown caller that PML(N) had found his new location and were coming after him. He therefore instructed his family to sell his shop and decided to come to Hong Kong via China. The non-refoulement claim 7.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:
8.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 9.The Director analysed the Applicant’s claim on all applicable grounds. He considered a wide range of documentary evidence including documentation as to the general situation in Pakistan at the time of the screening, which has, in the interim, changed significantly and PML(N) are no longer in power. He correctly set out the law, key legal principles and made reference to relevant materials including Country of Origin information (“COI”). The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, but he did not do so. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 by letter dated 21 November 2016 and was invited to make submissions thereon. He declined to do so. If he had felt that the information available to the Director was out-of-date or inaccurate he had an opportunity to address this. Decision of the Adjudicator 10.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. He established that the very first incident had arisen after the PML(N) members had asked him nicely to join them and then only later had said “…if you do not cooperate, you and your family, will be in danger”. He provided documentary medical evidence in respect of the March attack but not as to the participants in the incident; and suggested for the first time that he had also been attacked in Rawalpindi when a car tried to run over him. He had not mentioned this previously as he felt it might not have been connected. 11.The Adjudicator found the Applicant to be unconvincing and lacking in credibility. As a consequence, he had failed to establish his claim to even the low level required. Even if the claim had been made out, it was not sufficiently serious that the Applicant could not have relocated safely. Although the Adjudicator may have made limited reference to the COI available to him that does not mean that he was not cognisant of it. It is after all, for the Applicant to establish his claim and not for the Direct or Adjudicator to seek to disprove it. Leave to apply for judicial review 12.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 13.There were no formal grounds of review. In his affirmation in support, he states that neither the Director nor the Adjudicator considered the “ground realities” in Pakistan. He has not identified any particular procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and 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 14.Despite the fact that the Applicant did not submit any proper grounds of review, I have considered the papers and single ground of review carefully. There is no basis whatsoever for suggesting that the Director or Adjudicator failed to properly take into account the situation in Pakistan pertaining at the time of the screening and hearing. 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. The documentary basis for their decisions was appended to their decisions and, if incorrect or out of date, the Applicant could have identified where that was the case. The onus was on the Applicant. Despite that onus, 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. 15.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 29th 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 |
Cases cited in this judgment
Further hearings and rulings under HCAL 932/2017