Aqeel Ahmed Alias Choudhry Aqeel Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1077/2017

[2019] HKCFI 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1077 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 originally entered Hong Kong lawfully on 26 June 2001 and made a claim under the UNHCR in July 2001, but was refused on 16 October 2001.  He appealed this decision on 22 October 2001 and was allowed to remain until 28 December 2001.  Thereafter he overstayed and was arrested by the police on 28 January 2003.  On 30 January 2003 he withdrew his appeal.  On 5 February 2003, the applicant was given a two months’ sentence suspended for two years.  He was repatriated to Pakistan on 14 February 2003.

2.In August 2007, the applicant returned to Hong Kong, illegally, by boat.  He was not arrested by the police until 18 June 2008 and that was for being in possession of a false identity card.  On 28 July 2008, he was convicted of that offence and for illegally remaining and was given a sentence of imprisonment of 15 months.

3.The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 30 June 2008, whilst on remand.  He was released upon recognisance on 3 June 2009.  On 10 April 2012, the applicant married a Hong Kong resident and applied for a dependent visa which was refused on 14 January 2014.  His NRF claim form was submitted on 30 July 2014 and a supplemental claim form was submitted on 30 September 2014.  The applicant attended a screening interview on 17 September 2014 and further interviews were arranged as it was not completed on the first occasion.  Subsequent interviews were arranged but the applicant was either sick or the applicant’s legal representative could not attend.  A final interview did take place on 20 April 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 12 June 2015 and by Notice of Further Decision (re BOR 2) on 7 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 30 August 2016.  He considered his appeal on all applicable grounds including BOR 2 on two different occasions.  The Adjudicator refused his appeal on all grounds save for BOR 2 on 8 March 2017 and in respect of BOR 2, without a hearing, on 3 November 2017.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.The applicant is a Pakistani national.  He was born on 6 April 1977, in the Punjab.  He had six years of formal education and operated a garment shop for one year in 1991 to 1992.  Thereafter he was unemployed from 1992 to 1997.  In 1997, the applicant joined Warish Shah (“WS”), which he says is affiliated to the Pakistan Muslim League (Nawaz) (“PML(N)”).  He was aware before joining that WS and the Pakistan People’s Party (“PPP”) were opposing groups and that there was hostility between them.  He says he was present at an incident in 1998 when four members of WS were shot by members of PPP.  The applicant states that the PPP made a First Incident Report (“FIR”) to the police about this event and that the applicant was implicated in it but he mentions no more about it than that.  In 1999, he says he was attacked by eight to nine people from PPP, whom he recognised.  They verbally abused him and used wooden sticks to beat him with.  He received a head injury as a result and fled to Data Darbar in Lahore.  Between 1999 and 2001, the applicant moved around, whilst waiting to come to Hong Kong.  Although the immigration officers had to be bribed, he managed to leave Pakistan on his own passport.  When he was repatriated from Hong Kong to Pakistan in February 2003, he maintains that upon arrival he needed to bribe officials once more to obtain entry as there was a warrant for his arrest.  The applicant went to Lahore where he says he was further assaulted by PPP members on two occasions in 2003.  On neither occasion did the applicant seek hospital treatment or report the matter to the police.  He remained in Lahore until 2005, but left when he returned home one day to find police officers waiting for him.  Between 2005 and 2007, the applicant went to Karachi and Gilgit, during which time he suffered no harm.  In 2007, he decided to return to Hong Kong but did so by entering illegally by boat from China.

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 a 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 the 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 on two occasions.  He arranged for an oral hearing in respect of all grounds save for BOR 2 and treated the appeal as a rehearing.  He correctly set out the law and key relevant legal principles including the burden and standard of proof.  He gave the opportunity to the applicant to address his concerns, which he did.  He noted that the applicant was a fugitive from arrest in Pakistan.  He found there was no evidence of risk of harm from a state agent or evidence of serious harm and he had failed to establish his case under the head of torture or BOR 3 and in any event the applicant could relocate.

9.In respect of persecution risk, the Adjudicator did not appear to set out the correct legal test when he found that the applicant had not suffered “severe injury or serious harm”, which he found would need to be proved to place him under this head of claim.  An applicant does not have to suffer severe injury or serious harm of the type suggested by the Adjudicator, in order to bring himself under this head of claim.  They are not “virtually the same” as BOR 3.  However, the facts of the applicant’s case do not establish the basis for a claim under this head and the Adjudicator’s error in this regard does not make any difference to the success of his claim here or in the tribunal below.

Leave to apply for judicial review

10.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

11.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.

12.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.  He therefore needs to establish his grounds by reference to the proceedings and the facts.  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.

13.Based upon the facts of this case, grounds i), vi), vii) and viii) are not triggered upon the facts and are therefore irrelevant and without merit.

14.As to ground ii) the applicant was invited to attend a hearing on 30 August 2017 in respect of consideration of all matters save for BOR 2.  I agree with the Adjudicator that there was no good reason to hold a further hearing for BOR 2.  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.  He noted inconsistencies between his evidence before him and his previous evidence.  I can see no other enquiries which he should have made in the circumstances and the applicant has not suggested any.  There is no merit in this ground.

15.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 weakness of the applicant’s case in respect of potential harm.  Save for what has already been said about the Adjudicator’s analysis of persecution risk, there is no merit in this ground.

16.As to ground iv), the Adjudicator clearly did consider the COI.  There is no merit in this ground.  The applicant has not identified any COI which the Adjudicator should have taken into account and did not.

17.As to ground v), what matters?  It appears from the Decision, that the Adjudicator did establish the facts from the applicant.  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 or misunderstood.

18.As to ground ix), there can be no criticism of the application by the Adjudicator of the burden and standard of proof, save for those comments already made in respect of persecution risk which I have referred to elsewhere.  For the reasons given here and above, there is no merit in this ground.

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

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

Conclusion

21.I have considered the papers and grounds carefully.  I have not found any error of law or procedure save that which has been referred to above.  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.  Save for that which has been mentioned at para 10 above, there is no criticism of his determination, which was open to him on the facts and reasonable.

22.In my judgement, even taking into consideration the views expressed at para 10 above, 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 the 12^th day of April 2019.

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