Tufail Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1065/2017 on BabelCite. This High Court CFI judgment was delivered on 2 July 2020.
1. The applicant entered Hong Kong legally on 2 February 2015 but was refused permission to land and submitted his non-refoulement claim by way of written representation on the same day. He was therefore transferred to the Immigration Department on 3 February 2015. His non-refoulement claim form was submitted on 3 March 2015.
Cites 1 case
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HCAL 1065/2017 [2020] HKCFI 1427 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1065 OF 2017 BETWEEN
Application for Leave to Apply for Judicial Review 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 legally on 2 February 2015 but was refused permission to land and submitted his non-refoulement claim by way of written representation on the same day. He was therefore transferred to the Immigration Department on 3 February 2015. His non-refoulement claim form was submitted on 3 March 2015. 2.The applicant attended a screening interview on 16 March 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 31 March 2015 and by Notice of Further Decision (re BOR 2) on 6 March 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 4 December 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 11 December 2017. 3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 December 2017 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 April 1990 and lived in the Swabi District. He is single, had 13 years of formal education and was a farmer. In 2013, the applicant joined the Pakistan Muslim League (Q) (“PMLQ”) but was approached shortly afterwards to join the Pakistan Muslim League (N) (“PMLN”), which he refused. Two to three days later, he was set upon by five to six unknown men, whom he assumed were from PMLN. He was punched and hit with sticks and later tied to a tree. The men had asked whether “he would still not join the party”. The applicant suffered internal injuries from this attack and was in hospital for three days even though he was given pain killers and received no other treatment. After discharge, the applicant reported the incident to the police who said that it would be investigated but he believes they did nothing. After that, the applicant was falsely accused of robbery and arrested. He was released three days later without explanation. The applicant then went to live with friends for the next 12 months and in early 2014 went to Utla, where he was later assaulted by unknown men. From Utla he went to Karachi and from Karachi 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:
6.It is the duty of 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 and Further Decision of the Director 7.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. The applicant answered questions put to him but the Adjudicator felt his story was vague and without any corroboration. He did not find the testimony of the applicant credible but nevertheless did assess the alleged facts against the relevant principles. The Adjudicator found that the applicant had not satisfied the burden of proof placed upon him and dismissed his appeal. 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 complained that the decision of the Adjudicator was unfair and unreasonable without more. 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 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 carefully. I have not found any error of law or procedure by the Adjudicator. He did take a robust view but I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout given the factual content of the claim. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with him. He considered relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case. There is no criticism of his determination, which was open to him on the facts and 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 2nd day of July 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.
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