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

HCAL 575/2019

[2022] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 575 OF 2019

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 5 July 2008 and was arrested by the police on 28 March 2009. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 30 March 2009.  He was released upon recognisance on 3 April 2009.  His NRF claim form was submitted on 16 June 2014 and dealt with under the USM[1].

2.The applicant attended a screening interview on 26 August 2014 and 27 November 2014.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 2 January 2015 and by Notice of Further Decision (re BOR 2) on 18 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), heard his appeal on 1 April 2016 and 11 December 2018.  The Adjudicator refused his appeal on 22 January 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 February 2019 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Pakistani national and was born and raised in the Punjab. His father ran a clothes shop in which the applicant worked after leaving school.  In 2002/2003, the applicant alleges that a man named Usman tried to shoot him because they belonged to different political parties.  In the end, Usman accidentally shot a friend of the applicant, who had to be hospitalised.  According to the applicant, Usman accused the applicant of carrying out the shooting and he was therefore questioned by the police but was not proceeded against.  Some two to three years later Usman was wanted by the police for this offence.  As a result, he sought revenge against the applicant and came to look for him.  He did not find the applicant as he had moved to stay with various relatives from time to time in order to avoid Usman.

5.In 2007, the applicant was involved in a motorcycle accident in which he knocked down a male and a child.  All three were injured.  After his recovery, the applicant was led to believe that both Usman and the man from the accident were looking for him.  As he was once more staying with relatives, he did not see any of the men looking for him but he felt his life was threatened and so he came to Hong Kong via China, where he stayed for several months with a friend.  During his interview with the Director of Immigration, the applicant maintains that his family has been the subject of beatings in the interim and therefore he still believes he is in danger if he were to return.  This stance changed before the Adjudicator.

The non-refoulement claim

6.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,

iv.  nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

v.  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.

7.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

8.The applicant seeks to appeal the decisions of the Adjudicator who had analysed the applicant’s claim on all applicable grounds.  She arranged for two oral hearings and treated the appeals as a rehearing.  In those hearings the applicant maintained that he no longer feared reprisal from Usman and now wished to return to Pakistan in order to marry and settle down. Nevertheless, the Adjudicator considered the papers and allegations laid before her as well as the oral representations of the applicant.  She correctly set out the law and key legal principles including the burden and standard of proof and upon that basis she refused his appeals.

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.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the Decision of the Adjudicator,it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review her.

Grounds of review

10.There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  This is somewhat unusual given the representations he made to the Adjudicator that he intended to return to his home country.  In any event, the applicant has not complained of any procedural irregularity, unfairness or unreasonableness.  An applicant has a duty to state the grounds of their intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.  They do not.

Conclusion

11.Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, 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.  She went on to consider whether the applicant had satisfied the burden of proof placed upon him on his original claim even though he had said he now wished to return to Pakistan as there was no longer any threat.  There can be  no criticism of her determination, which was open to her on the facts and eminently reasonable[2].

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 7th day of April 2022.

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

[1] Unified Screening Mechanism

[2] Nupur Mst v Director of Immigration [2018] HKCA 524