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

HCAL 1049/2017

[2018] HKCFI 2485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1049 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 in July 2009 from China and was arrested by the police on 30 March 2010 for illegally taking up employment for which he received 13 months’ imprisonment on 26 May 2010.  He was discharged on 18 December 2010 and released upon recognisance on 19 January 2011.  The applicant submitted his non-refoulement (“NRF”) claim by way of written representation on 30 November 2010.  His NRF claim form was submitted on 30 December 2014.

2.The applicant attended a screening interview on 8 April 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 16 April 2015 and by Notice of Further Decision (re BOR 2) on 6 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tam Kwok‑wah (“the Adjudicator”), heard his appeal on 10 August 2016 and 17 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 7 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 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 on 9 April 1984 and lived in Gujarat.  He is a Muslim.  He is not a member of a political party and worked as a carpenter.  His brother Bilal came to Hong Kong to seek asylum protection in 2000.  The applicant claims that he was kidnapped in 2006 by colleagues of a man called Chaudhary, who was the leader of the Pakistan Muslim League (Q) (“PMLQ”) who were seeking the whereabouts of his brother Bilal.  He was slapped and punched for five to ten minutes and threatened with sticks but did not disclose where his brother was (even though his brother was in Hong Kong at the time).  He was released the next day with a warning that neither he nor his brother were safe in Pakistan.  The applicant believed that this threat was because his late father had previously worked as a driver for Chaudhary and knew Chaudhary’s secrets but admitted that he was very young himself at that time.  The applicant was told not to report the incident to the police.  Very shortly after his release, the applicant was run over by a car and became unconscious.  He was taken to hospital and received 12 to 13 stitches before being released the next day.  As a result of these two incidents, the applicant fled to Islamabad but at no stage reported the incidents to the police.  From Islamabad the applicant went to Sialkot to work for three years as he feared being traced in Islamabad.  He obtained a passport in 2007 but could not join his brother in Hong Kong because he could not afford the air fare.  In 2009, the company he worked for closed down and he had no means of support, so he decided to come to Hong Kong but first travelled to China from where he sneaked over the border.

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 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.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 noted that the applicant’s grounds of appeal relied upon his fear that he will be killed by his enemies and that there was no rule of law in Pakistan.  At the hearing, the Adjudicator explained his rights to the applicant but the applicant declined to give evidence on his own behalf.  However, a further hearing was listed in order to give the applicant time to supplement his case.  A subsequent hearing was listed, a year later, on 17 August 2017 but the applicant failed to attend. Despite being given an opportunity by letter to explain his lack of attendance, the applicant did not reply.  His claim was therefore considered as it stood.  The adjudicator found that the applicant had not satisfied the burden of proof placed upon him and dismissed his appeal.

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 no grounds of review.  The applicant complained that the Director and the Adjudicator did not read the case papers carefully and did not listen to him.  In essence, the applicant asks for a re-hearing of his appeal.  He has not complained of any specific 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

11.Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully.  This application was factually without merit.  I have not found any error of law or procedure by the Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Indeed, quite the opposite.  Despite the onus being upon the applicant, the Adjudicator attempted to engage in a joint endeavour with the applicant, which the applicant declined.  He considered all relevant criteria; gave the applicant a more than reasonable opportunity to state his case and enquired into that case on the papers appropriately, given the applicant’s non‑attendance.  There is no criticism of his determination, which was open to him 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 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