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

HCAL 244/2018

[2020] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 244 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 by boat on 9 April 2008, from China and was arrested by the police for illegally remaining on 31 May 2008 and released on recognisance on 23 June. The applicant submitted a non-refoulement claim by way of written representation on 21 October 2008.  On 29 January 2010, he was arrested for an offence of theft and was convicted on 9 February 2010 and was fined $1,000.  His non-refoulement claim form was submitted on 4 October 2016.

2.The applicant attended a screening interview on 7 November 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 10 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), heard his appeal on 22 January 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 9 February 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 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 7 March 1988 in Gor Shareef.  In 2006, the applicant witnessed the murder of a fellow Pakistan Muslim League (Nawaz) (“PML(N)”) member by members of the Pakistan People’s Party (“PPP”) called Razzaq and Mushtaq and assisted the police in their investigation.  As a result, Razzaq and Mushtaq were remanded in custody.  Shortly afterwards, the applicant was accosted by two strangers who carried weapons and who threatened him, telling him not to give evidence against Razzaq and Mushtaq.  Three to four days later, the applicant was asked to attend at the police station for further enquiries.  On his way to the police station he was once again accosted by members of the PPP, who told him not to assist the police.  The applicant replied that he had no choice and as a result, the men attacked him and kidnapped him.  They kept him for a short time within a house in his village and during that time they assaulted him.  When the applicant agreed not to testify against the killers, he was released.  He did not require medical treatment and he did not report the incident to the police.  In order to avoid his attackers and the police, the applicant went to stay in the house of a relative some 8 km away and later he moved further away to Chiter Pari, where he stayed for eight to ten months and then to Marwal, where he stayed for six months.  Eventually the applicant went to Islamabad and then to Urumqi in China.  He did this because he had been told by others that members of the PPP were looking for him.

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 Adjudicator

7.The applicant seeks to review the decision of the Adjudicator only.  He arranged for an oral hearing and treated the appeal as a rehearing.  He noted that initially, the applicant was cooperative and willing to answer questions but when challenged about inconsistencies in his bio data, as to his date of birth and educational qualifications, were put to him, he then refused to answer further.  This was not to his benefit and he was informed of his rights and the need to cooperate but nevertheless did not do so.  The hearing was therefore terminated prematurely, as the Adjudicator could not glean any further information from an uncooperative appellant.  He therefore considered the appeal upon the papers before him.  He correctly set out the law and key legal principles including the burden and standard of proof.  He analysed the applicant’s claim on all applicable grounds and found that the applicant had not established his claim under any head 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 save for the complaint that the decision was unfair and unreasonable.  The applicant seeks 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 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 proper grounds of review, I have considered the papers carefully.  The applicant chose not to cooperate with the Adjudicator despite being told of the likely consequences of that refusal on the basis of the claim being made.  The claim was a simple one and it was explained upon the papers before the tribunal.  In analysing that case on the papers, as he was bound to do, 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 including an explanation of the detrimental effects of failing to answer questions where the onus was on the applicant to make out his case.  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 the materials available to him 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 15^th day of June 2020.

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