Luqman Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 969/2017

[2018] HKCFI 2713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 969 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 illegally from China on 30 September 2013.  He was arrested by the police on the same day.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 5 October 2013.  He was released upon recognisance on 19 December 2013.  His NRF claim form was submitted on 2 October 2015.

2.The applicant attended screening interviews on 9 December 2015 and 25 February 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 1 April 2016 and by Notice of Further Decision (re BOR 2) on 8 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Wong Hing‑chun (“the Adjudicator”), heard his appeal on 11 September 2017. She considered his appeal on all applicable grounds including BOR 2.  The Adjudicator 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 28 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 on 29 December 1982 in the Punjab.  He worked as a farmer.  He relies upon several distinct incidents to suggest that if refouled to Pakistan he would be at risk of harm from “Zahid”, because of past conflict between Zahid and his maternal cousin Zakir.  The first such incident was in 2010, when the applicant became involved in a fight commenced by Zahid and his brother over a lost dog fight in which he came to the defence of Zakir.  He received only very minor injuries as a result.  The applicant reported this to the police but he learnt that his complaint was eventually dismissed.  The applicant assumed this was because of Zahid’s connection to the police.  Two to three months later, the applicant and Zakir were assaulted by the same group of people, but once again escaped with minor injuries.  A few days after this second incident, an allegation was made by Zahid to the police which led to the applicant’s arrest as well as to the arrest of his cousin Zakir and the applicant was detained for some 10 days.  During that period, the applicant’s father mediated between the two and, after payment, Zahid dropped his complaint.  In early 2011, however, the applicant says that his father was assaulted by Zahid whilst in the mosque and later Zahid made an allegation of assault to the police, this time against his father, although this too came to nothing when village elders intervened.  After this incident, the applicant went to Karachi and had no further dealings with Zahid, although he had been told by his father that Zahid wanted to kill the applicant.  Nevertheless, the applicant returned to his village in June 2011, and a few weeks later, was the subject of verbal abuse by Zahid and his brothers although nothing else occurred on this occasion and he was unharmed.  This incident was not reported to the police.  The applicant obtained a passport in July 2011 and flew first to Thailand and then illegally entered Malaysia before returning to Pakistan in September 2011.  Between September 2011 and March 2012, the applicant was attacked by Zahid and others, six to seven times in groups of two or three. He does not remember the details of these attacks save that he was able to escape on each occasion.  Once again he says he received only minor injuries.  Although the applicant then left home and lived in Karachi for a short while, he returned to his village in March 2013 to attend a meeting of reconciliation.  Unfortunately, a quarrel ensued between the two families but the applicant was able to escape unharmed.  The applicant left his home village the same day and went to Lahore. By this stage, his father believed that he would be killed if he returned home and it was his father who arranged for him to travel to China.  In order to do so, he returned to his home village for two days prior to departing and nothing untoward happened to him at that time.  He then flew to China and entered Hong Kong illegally by boat.

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 of the Adjudicator

7.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.  She attempted to elicit further information from the applicant and provided the applicant with an opportunity to submit further information.  She explained her reasoning in full.  She noted that the applicant expected to be able to return to his home village once a settlement was negotiated between him and Zahid by his father.  She also commented on a number of “irresolvable inconsistencies” between the submitted documents, the hearing before the Director and the hearing conducted by herself.  As a result, the applicant was disbelieved. Nevertheless, the Adjudicator considered his case based upon the facts presented by him, which she found did not establish his claim to the requisite standard.

Leave to apply for judicial review

8.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

9.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 benefit. 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.

10.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.

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

12.As to ground ii) the applicant was invited to attend a hearing on 11 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 she read.  She noted inconsistencies between his evidence before her and his previous evidence.  I can see no other enquiries which she should have made in the circumstances and the applicant has not suggested any.  There is no merit in this ground.

13.As to ground iii), the Adjudicator outlined all available evidence and identified the limitations of it.  She explained her reasoning in some detail and commented upon the applicant’s apparent inconsistencies in his evidence.  This ground also fails.

14.As to ground iv), the Adjudicator clearly did consider the COI.  There is no merit in this ground.

15.As to ground v), what matters?  It appears from the Decision that the Adjudicator did her best to establish the facts from the applicant.  What facts did she not take into account?  What facts did she 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 or misunderstood.

16.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.

17.As to ground x), the Adjudicator explained her reasoning for rejecting the applicants claim and she cannot be faulted for that reasoning.  Without more, this court cannot see any merit in this ground.

18.As to ground xi), the Adjudicator considered relocation.  There is no merit in this ground either.

Conclusion

19.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.  The applicant was simply not believed.  The Adjudicator explained why that was the case.  Nevertheless, she assessed the claim against the facts provided.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.  

20.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 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