Case Document

100%Judiciary

HCAL 1606/2018

[2020] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1606 OF 2018

BETWEEN

	Hussain Mumtaz	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 by boat on 17 August 2015 and surrendered to the Immigration Department on 20 August 2015. The applicant submitted a non-refoulement claim by way of written representation on 30 May 2016. His non-refoulement claim form was submitted on 18 July 2017.

2.The applicant attended a screening interview on 8 August 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 9 August 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard his appeal on 9 May 2018. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 30 July 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 10 August 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 is a Sunni Muslim and is widowed with three sons and two daughters. He operated a flower shop between 2001 and 2013. In November 2013, the applicant was visiting a Mosque when members of the Shia sect arrived, set fire to the Mosque and started shooting people at random. The applicant joined in the defence of those present and assisted others to beat up at least one perpetrator “Naqvi”. The applicant later discovered that this had been caught on video and that Naqvi was in critical condition in hospital. Because of this, his men were looking for the applicant. Naqvi later died and the applicant believed that his brother “Sajid” and his men would seek him out. He fled to Karachi initially but returned home in January 2014 and lived undisturbed for four months. However, in May 2014, seven men approached him including Naqvi’s brother Sajid. The applicant fled in fear and escaped unharmed. The applicant reported this incident but was told that the Sajid was influential and they could not help. One year later in May 2015, the applicant decided to come 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 (“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[1].

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 correctly set out the law and key legal principles including the burden and standard of proof. He explained the process to be adopted and the applicant’s responsibility to prove his case. He was invited to produce the video recording alluded to in his claim and given the opportunity to do so. He was unable to do so but was able to produce media reports of the attack on the Mosque. Despite that, the Adjudicator did not find the applicant to be a credible witness. He explained why that was in some depth and found that the applicant had not established his claim to the requisite standard.

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 formal grounds of review. The applicant actually seeks a re-hearing of his appeal but has also complained that the Adjudicator failed to conduct enquiries from reliable sources, had not taken into consideration the realities on the ground and provided no reasonable grounds for refusal. 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

11.Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and his limited general grounds carefully. The Adjudicator clearly considered the COI and the relevant local issues. His reasons for decision were detailed and comprehensive. There was no merit in these grounds. I have not found any error of law or procedure on the part of the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The applicant was given every opportunity to submit the video evidence he says he relies upon as the trigger for his claim. 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 23^rd day of June 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 23 June 2020 Hussain Mumtaz 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 23 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8209/17/8/247/P1618 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1633/17 (formerly RBCZ 12093/16)