TUFAIL USMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 326/2018

[2018] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 326 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant was arrested by the police for illegal remaining on 18 November 2010.  He was transferred to the Immigration Department on 20 November.  He made a torture claim under Article 3, which was rejected on 9 March 2012.  The Applicant thereafter submitted non‑refoulement (“NRF”) claims by way of written representation on 26 and 28 August 2014.  He was released upon recognisance on 15 October 2014.  His supplementary NRF claim form was submitted on 7 June 2016.

2.  The Applicant attended a screening interview on 20 October 2016 and confirmed through his lawyer, by letter dated 25 October 2016, that he had no additional facts to submit to the Director in support of his claim.  The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds by Notice of Decision (“the Decision”) on 31 October 2016.  The adjudicator of the TCAB, Ms Gina Towney (“the Adjudicator”), heard his appeal on 3 January 2018, which was considered on all applicable grounds.  The Adjudicator refused his appeal on 28 February 2018.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 March 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 4 September 1986 in the Punjab.  He is single.  Between 2001 and 2007, he operated an internet café and thereafter worked as a computer operator for Cosmos News Agency in Islamabad.  Latterly, he became a reporter for the agency and worked with them until 2010.

5.  This claim arises out of a dispute over land in 2007, which was sold by the Applicant and his brothers to a man called Butt for 1.85 million Rupees.  Shortly thereafter, Butt kidnapped the Applicant and demanded the money back from his family.  He threatened to kill the Applicant.  This threat and kidnapping were reported to the police, who investigated and found the Applicant on the same day.  They also arrested Butt and his compatriots.  However, the police released Butt the following day, apparently because of his wealth and political affiliation.

6.  Butt continued to press the applicant for repayment by telephone, after his release and on one evening a group of men fired shots outside the Applicant’s house.  Both incidents were reported to the police but no action was taken.  The Applicant shut down his internet café, sold everything and fled to Islamabad.  Hs mother and brothers went elsewhere.  It was during this period of time, that the Applicant went to work for the Cosmos News Agency.  Between 2007 and 2010, nothing occurred but in early 2010, the Applicant received threatening phone calls from Butt and believed that on one occasion he was followed by Butt and his friends, who were carrying guns.  The Applicant therefore went into hiding and arranged to come to Hong Kong.

The non-refoulement claim

7.  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, 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.

8.  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

9.  The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as he took into account the processing and documentation relating to the Applicant’s original claim.  He considered a wide range of documentary evidence including documentation submitted by the Applicant.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did.  It was clear that there was only one incident in which the Applicant had come into physical contact with Butt and had been unharmed.  Thereafter, he had spent a considerable period of time undisturbed.  In coming to his decision to reject the Applicant’s claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

10.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  There were several inconsistencies within the Applicant’s evidence which were canvassed by the Adjudicator.  This included the period in which he alleged that he had been in Islamabad and working as a newspaper reporter, which she disbelieved.  It was important to note that the Applicant submitted no documentary evidence to support his claims in this regard, despite being given the opportunity to do so.  In all, the Adjudicator felt the Applicant lacked credibility and rejected his evidence.  Consequently, he failed to satisfy the burden placed upon him.

Leave to apply for judicial review

11.  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 Decisions of the Director and 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

12.  There were no grounds of review.  The Applicant asks for 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 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

13.  Despite the fact that the Applicant did not submit any grounds of review, 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 Director and 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 their determinations, which were open to them on the facts and eminently reasonable.

14.  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.

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