Case Document

100%Judiciary

HCAL 890/2017

[2020] HKCFI 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 890 OF 2017

BETWEEN

	Khan Nazakat	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 18 March 2016 by boat and was arrested by the police on the same day. The applicant submitted a non-refoulement claim by way of written representation on 22 March 2016 and was released upon his own recognisance on 19 April. On 23 September 2016, he was convicted of taking up employment whilst being a person the subject of a removal order and was sentenced to 15 months’ imprisonment. His non-refoulement claim form was submitted on 11 May 2016 and was supplemented by two sets of List of Questions (“LOQ”).

2.The applicant did not attend a screening interview. The Director of Immigration (“the Director”) reviewed all of the documents submitted including the LOQ and dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 3 November 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 8 September 2017. The Adjudicator considered his appeal on all applicable grounds and refused his appeal on 22 September 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 November 2017, although the actual grounds, such as they were, were not submitted until 18 May 2018. He 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 February 1996, in the Punjab. The applicant’s claim arises out of a motorbike accident in May 2015, in which the applicant hit a pedestrian called Hamza. Even though the pedestrian was seriously injured, the applicant did not stop but he had already been recognised by local inhabitants. The next day, the applicant was assaulted by a group of five to six men whom he believed had come from the family of Hamza. They carried sticks, knives and pistols. They broke down the door to his home and beat him with sticks for two to three minutes. He was not seriously hurt and did not require medical attention. He did not report the matter to the police as the family were connected to the Pakistan Muslim League Nawaz and had influence with the police. The applicant fled to Islamabad and maintains that thereafter the police came to his home but as he was not there, the police arrested his uncle instead. Two to three months later his uncle was found dead. In October 2015, the applicant moved to Yaseen and then in February 2016 he went to China.

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 (“the 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. She arranged for an oral hearing and treated the appeal as a rehearing. The applicant was legally represented. The procedure to be adopted was clearly set out. She correctly set out the law and key legal principles including the burden and standard of proof and researched relevant COI. This was a year and a half after the applicant first made a claim. He had every opportunity to support that claim with documentary evidence. He did not do so. The Adjudicator noted his claim was based entirely upon bare assertions. Nevertheless, and in the face of inconsistency of account, the Adjudicator noted such inconsistencies may not be fatal to the core issue of his claim, which she noted was that the uncle of his victim may cause him serious harm. Accordingly, the Adjudicator went to considerable length to look at the local political dynamic relevant to the applicant’s home area. His account was found wanting. The Adjudicator also moved on to an investigation of the facts relied upon. The applicant’s answers in this respect were not persuasive. Ultimately he was not believed and had therefore not established the burden upon him, even to a low standard, to establish his case.

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 actual grounds of review save for a complaint that the Adjudicator had come to a wrong conclusion in law as to his credibility and he supported that with a re‑submission of his case. The applicant essentially 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 proper grounds of review, I have considered the papers, and what grounds there are, carefully. I have not found any error of law or procedure by either the Director or Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The applicant does not appear to have complained about the manner in which he was dealt with by the Director. He had ample time to adduce additional evidence before the Adjudicator if he wished to rely upon it and his legal representative before the Director could have made submissions about that evidence if he had been instructed to do so. His detention within Castle Peak Bay Immigration Centre did not preclude him communicating with his family if he had wished to obtain further evidence, although on the facts, I do not see this would have advanced his case under the regime. Despite the onus being upon the applicant, the Adjudicator nevertheless 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 difficulty the applicant faced was that his case did not stand up to scrutiny. There is no criticism of the determination of the Adjudicator, which was open to her 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 19^th day of May 2020.

	(Marcus Wong)
	for Registrar, High Court

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.

Notes for the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 19 May 2020 Khan Nazakat Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 May 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5205/16/11/144/P1198 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1005/16 (formerly RBCZ 11220/16)