Wakalat Raza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 991/2017

[2018] HKCFI 2541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 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 legally on 28 July 2004 but thereafter overstayed.  He was arrested by the police on 2 May 2005 and convicted of breach of condition of stay on 16 May 2005 for which he received a sentence of two months’ imprisonment suspended for two years.  He was repatriated to Pakistan in June 2005.  He entered Hong Kong once more on 10 July 2006, this time illegally.  He was arrested on 15 October and convicted on 25 October 2006, for illegally remaining.  He received 15 months’ imprisonment.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 16 January 2007 and on 21 January 2013, he sought to withdraw that application.  He asked for it to be reopened on 14 March 2013, but did not respond to a request for further information.  It was not until 25 November 2015, that the applicant wrote to express an intention to apply for non-refoulement protection and his case was re-opened.  His NRF claim form was submitted on 14 March 2016.

2.The applicant attended a screening interview on 25 May 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 31 May 2016 and by Notice of Further Decision (re BOR 2) on 19 September 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Bruce Henry (“the Adjudicator”), heard his appeal on 28 September 2017.  He considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 8 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 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 in the Punjab.  He is single, an Arian and Muslim.  He received only two years’ formal education and worked as a bodyguard or gunman. The applicant was a member of the Pakistan Muslim League (Nawaz) (“PML(N)”). In 2002 or 2003, he attended a rally for PML(N) as the bodyguard for three people.  During the rally a fight broke out between supporters of PML(N) and the Pakistan People’s Party (“PPP”).  The applicant was involved in the fight and suffered fractured arms and his back was burnt with acid.  These injuries required hospitalisation.  Subsequent to the rally, an allegation was made against the applicant by a bodyguard for members of the PPP, that the applicant had shot him during the rally.  As a result, the applicant was detained for some 10 months but was dealt with by the police and courts appropriately until the case was finally dropped.  It was this detention which led to the applicant to leave Pakistan.  After several uneventful months at home in Pakistan, he came to Hong Kong in 2004.  In 2005, the applicant was repatriated and returned to his home village.  He says that nothing occurred during his stay at home but the nevertheless feared he would be harmed and therefore moved away.  Whilst he cannot now recall where he went during this time, he maintains that nothing occurred of any note.  It was only when he learnt that his whereabouts had been discovered that he decided to return once more to Hong Kong by entering illegally from China.  Since his arrival, the applicant has changed allegiance to the Pakistan Tehreek-e-Insaf party and fears that this shift of allegiance will also cause PML(N) members to seek revenge if he were to be refouled to Pakistan.

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 the Director

7.The applicant seeks to review both the Decision of 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.  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 attempted to elicit further information from the applicant and provided the applicant with an opportunity to submit further information.  He explained his reasoning in full.

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 those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.There were 11 grounds of review.  They follow a similar pattern to those often submitted and are without any supporting clarification.  This is unhelpful and not to the applicant’s credit. They can be summarised as follows, in so far as the applicant complains as against the Adjudicator, he submits that the Adjudicator:

i)  failed to consider the concept of state acquiescence or extended state acquiescence;

ii)  made insufficient enquiry;

iii)  failed to provide sufficient reasons;

iv)  failed to consider COI;

v)  failed to place weight on relevant matters or selectively placed weight on irrelevant matters or inaccurate or incorrect facts;

vi)  failed to consider a consistent pattern of human rights violations;

vii)  failed to consider if state protection exists in India (!!);

viii)  failed to call for psychological or psychiatric reports;

ix)  applied the incorrect standard of proof;

x)  had no reasonable basis for the rejection of the applicants claim; and

xi)  had no proper basis for the consideration of internal relocation.

11.The applicant has not identified any specific procedural irregularity, unfairness or unreasonableness by reference to the Adjudicator’s Decision.  He 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.  Nothing is gained by simply adopting grounds drafted by someone else who is not even the same nationality as the applicant.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12.Based upon the facts of this case, grounds i), vi), vii) and viii) are irrelevant and without merit.

13.As to ground ii) the applicant was invited to attend a hearing on 28 September 2017.  The procedure for the hearing was explained to him.  He was invited to answer questions and to add any further information which he wished to add.  The Adjudicator was in possession of all relevant documentation, which he read.  It is clear that the Adjudicator gleaned further information from the applicant at the hearing including the applicants current state of health.  It was also clear that the applicant was unable to remember most of his original story or what had happened to him in Pakistan.  In the absence of being able to clarify the issues raised, what more does the applicant expect the Adjudicator to do?  It is for the applicant to establish his case. There is no merit in this ground.

14.As to ground iii), the Adjudicator outlined all available evidence and identified the limitations of it.  He explained his reasoning in some detail and commented upon the applicant’s apparent loss of memory before the Board which was not present during the hearing with the Director some 18 months previously.  The Decision of the Adjudicator was 22 pages in length and provided a detailed exposition of his views in language which the applicant would be able to understand.  This ground also fails.

15.As to ground iv), there is no duty upon the Adjudicator to identify what COI he has referred to.  Such research would depend upon the facts of the case.  The allegation was one of a personal vendetta by a bodyguard who happened also to be member of a different political party, although the single incident in question arose not out of political affiliation but out of a work related incident in which the applicant admitted he too was involved in the fight which ensued.  This appears to be a private vendetta and not politically motivated.  The politics of the parties are subservient to the animosity between them.  Since that date the applicant has come to no harm.  Where then would specific COI come into play?  It is for the applicant to at least identify what it is he says the Adjudicator should have known, which he did not, before coming to his decision.  There is no merit in this ground.

16.As to ground v), what matters?  It appears from the Decision that the Adjudicator did his best to establish the facts from the applicant who, by and large, could not answer because he could not remember.  What facts did he not take into account?  What facts did he take into account but in error?  Which facts were incorrect?  It is for the applicant to look to the Decision and identify where his complaint lies.  He is not prejudiced in doing this as it is his case and he was present at the hearing.  He is not required necessarily to place a legal label upon it but common sense dictates he should be able to say where he felt the Adjudicator failed to listen.

17.As to ground ix), there can be no criticism of the application by the Adjudicator of the burden and standard of proof.  There is no merit in this ground.

18.As to ground x), the Adjudicator explained his reasoning for rejecting the applicant’s claim and he cannot be faulted for that reasoning.  Without more, this court cannot see any merit in this ground.

19.As to ground xi), the Adjudicator considered all necessary elements of the claim and came to the conclusion that the applicant’s claim lacked credibility.  Having rejected the applicant’s claim and explained in detail why he did so, there was no necessity for him to consider whether relocation was an option.  His decision making did not turn upon this point.  There is no merit in this ground.

Conclusion

20.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.  He was hindered by the fact that the applicant could no longer remember even some of the more obvious elements of his case.  The applicant was not believed.  The Adjudicator explained why that was the case.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.  

21.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 14^th day of December 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