Sultan Zahid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 41/2018

[2019] HKCFI 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 41 of 2018

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 on 1 July 2013 from China and was arrested by the police on the same day.  The applicant made a torture claim on 4 July 2013 and submitted his Torture Claim Form (“TCF”) on 23 September 2013.  That claim was rejected on 17 January 2014.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 27 January 2014 and his claim was considered under the Unified Screening Mechanism (“USM”) on all other grounds (including BOR 2) but save for torture.  His Supplementary Claim Form (“SCF”) in respect of the USM grounds was submitted on 13 June 2017.  Prior to that, on 15 July 2016, he was convicted of taking up employment without permission and sentenced to 15 months’ imprisonment. He was discharged from prison on 12 May 2017, shortly before he submitted his SCF.

2.The applicant attended screening interviews on 11 December 2013 and 9 January 2014 in respect of his TCF and on 27 June 2017 in respect of his SCF.  The Director of Immigration (“the Director”) dismissed his claim by Notice of Decision (“the Decision”) on 29 June 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 3 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 22 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 9 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 2 June 1991, in Shinka.  He maintains that in 2013, he started a clothes business for which he had borrowed money from his cousin “Nawaz”.  Nawaz was a member of the Jamate Islami Party (“JIP”) and the applicant was a member of Tehreek-e-Insaf (“T-e-I”).  The business did not thrive and the applicant could not repay the debt.  An argument ensued with his cousin and another person over both the non-payment of the debt and the fact that the applicant wished to vote for T-e-I.  He was slapped, punched and kicked by them.  They threatened to shoot him and then left.  The applicant received minor injuries including a cut to his head.  He reported the matter to the police but they would not accept the complaint without a bribe.  Because of what happened, he fled Pakistan and 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:

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 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 Director

7.The applicant seeks to review the decisions of both 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 explained the procedure to the applicant and his rights.  The applicant wished to rely on the case as outlined in the papers before the Board.  He explained why his business had failed and what he had done about it.  The Adjudicator analysed the facts presented to him and correctly set out the law and key legal principles including the burden and standard of proof, which he applied to those facts.  He found a number of inconsistencies in the evidence and disbelieved the applicant.  Nevertheless, he went on to assess the applicant’s claim at its highest and to consider the relevant COI but found that he had failed to establish his claim.

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 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

11.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.

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 the 24^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