Hussain Zubair v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 40/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2019.
1. The applicant entered Hong Kong illegally on 22 April 2014 from China and was arrested by the police on 21 August 2014 for illegally remaining. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 26 August 2014. He was released upon recognisance on 13 September 2014. His NRF claim form was submitted on 2 March 2016.
Cited by 1 case · Cites 2 cases
|
HCAL 40/2018 [2019] HKCFI 1143 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 40 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by The Honourable Mrs. Justice Campbell-Moffat:
Observations for the Applicant: Procedural history 1.The applicant entered Hong Kong illegally on 22 April 2014 from China and was arrested by the police on 21 August 2014 for illegally remaining. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 26 August 2014. He was released upon recognisance on 13 September 2014. His NRF claim form was submitted on 2 March 2016. 2.The applicant attended a screening interview on 27 May 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 27 July 2016 and by Notice of Further Decision (re BOR 2) on 14 July 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 9 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 15 December 2017. 3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 January 2018 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 15 October 1984, in the Punjab. He had 10 years of formal education and worked as a farmer between 2000 and 2006 and thereafter as a Land Officer in the Land Office between 2006 and 2010. The applicant was a member of the Pakistan Peoples Party (“PPP”) but 90% of the local population were supporters of the Pakistan Muslim League (N) (“PML(N)”). The applicant also appears to have been a Deobandi Sunni, who had some degree of conflict with Brailvi Sunnis and Shias. In 2013, a group of Brailvi Sunnis who were PML(N) supporters assaulted the applicant’s local Imam. The applicant went with the Imam to file a report with the police but the police would not accept the complaint as they had been approached by the Brailvi Sunnis beforehand. Thereafter, the applicant received several telephone calls a week from Shias or Brailvi Sunnis telling him to file no further complaints to the police; not to belong to the PPP and not to vote PPP or he would be killed. On one occasion unknown men tried to drag him from his home but neighbours intercepted them and he was ultimately unharmed. The applicant reported this to the police and his assailants were intercepted and detained in order for the applicant to identify them, which he did but the suspects were later released. The applicant therefore made a report to a senior police officer and attended a number of interviews over several weeks during which the police sought to persuade him to drop his complaint because of the influence of the PML(N) or to reach a compromise in order to avoid further trouble but the applicant wished to proceed. The applicant continued to receive phone calls telling him not to proceed with his complaint. He left his home to avoid further trouble and went to Peshawar and then, for fear they could track him down and to avoid being killed, he came to Hong Kong. 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:
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 applicant seeks to review the Decision of the Adjudicator. 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 explained the purpose of the hearing and the procedure to be adopted. The applicant stated he wished to produce documents to the Adjudicator but could not say which documents he wished to produce. Having given the applicant a fair opportunity to add to the facts already before the him, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof. He analysed the facts, applied the law to them and explained why he found that the applicant had not established his case 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 no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant 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. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. Conclusion 10.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers 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. There is no criticism of his determination, which was open to him on the facts and eminently reasonable. 11.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 the 30th 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
|
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 40/2018