MEHMOOD TARIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL626/2017

[2018] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 626 of 2017

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 entered Hong Kong illegally by boat on 13 February 2014.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 23 February and 11 March 2014 as well as an undated letter received on 27 March 2014.  His NRF claim form was submitted on 24 November 2015.

2.  The Applicant attended a screening interview on 11 February 2016 when he was represented by the DLS.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 3 May 2016 and by Notice of Further Decision (re BOR 2) on 5 December 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 10 May 2016.  The Adjudicator of the TCAB, Ms CKS Lam, heard him on 14 March 2017 when he was with an Urdu/Punjabi interpreter.  The Adjudicator confirmed that the Applicant did not wish to add any grounds of appeal under BOR 2, which had yet to be considered by the Director, and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 23 June 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017 did not request an oral hearing.  This application was therefore considered on the papers alone.

Background

4.  The Applicant was born in Mohallah Phalia Keema, Phalia, Mandi Bahauddin, Pakistan on 28 March 1970 and is 47 years of age. He lived there with his family until he left for Rawalpindi in 1994.  Between 1994 and 2001, the Applicant worked in Rawalpindi as a domestic helper.  In 2001, the Applicant set up his own vegetable stall.  He remained in Rawalpindi until he moved to Mainland China on 18 January 2014.  The Applicant is divorced and his ex-wife and daughter still live in Pakistan.

5.  In 1993, the Applicant owned land which he said was occupied against his wishes allegedly by members of the Pakistan People’s Party (“PPP”), one of whom was a local gangster (“AM”) and the son of an MP.  It was AM who occupied his land.  The Applicant was not associated with any political party.  In 1993, AM offered to purchase the land for half its value and the Applicant refused, as a result of which he maintains that he was held in the house of AM for three days, during which time he was slapped and received death threats but sustained no serious injury and was fed.  He ultimately had no choice but to sell the majority of the land to AM but was supposed to be allowed to keep 1 acre to farm himself.  The transfer documents were signed under duress at gunpoint.  Only 150,000 Rupees was paid by AM of the 1,500,00 Rupees agreed upon.  AM eventually occupied all of the land including the 1 acre set aside for the Applicant.  The Applicant did not report this to the Lands Officer, the police, government or his family because everyone was under AM’s control.

6.  Six months after this incident, the Applicant maintained he was falsely arrested for an offence of possession of firearms at the behest of AM.  He was detained without bail for two months and 14 days before being granted bail.  Thereafter, he failed to attend court and is likely to be wanted for so doing.  There is no direct evidence to support this contention.  The Applicant alleges that he has no other enemy and feels AM wished him to leave the area because AM still owed him money and the 1 acre of land.  After release on bail, associates of AM kidnapped the Applicant because he had asked to be paid the remaining sale price and have the 1 acre returned to him.  He says he was beaten with sticks by four men for 10-15 minutes receiving injuries to his head and left leg.  He was then taken to AM at which point he asked for mercy and begged to be freed in return for giving up the money and the land.  The Applicant says he was treated privately for his injuries as the local hospital required him to make a police report before treating him.  He did not do so because AM’s father was an MP and in control of the police.

7.  The Applicant had nothing further to do with AM and after approximately five to six months the Applicant fled to Rawalpindi, where he worked as a domestic helper for the Deputy Superintendent of Police for seven years.

8.  In 2001, and quite separately from his involvement with AM, the Applicant maintains he was involved in seeking to establish that someone (“M”) had killed his brother by setting him on fire in order to run off with his sister-in-law.  Although the Applicant was not a witness to this incident; has had no dealings with “M” and does not know M’s whereabouts, nevertheless he feels M would kill him if he returned to Pakistan.

The non-refoulement claim

9.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds on two separate occasions, which are:

i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

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”);

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”); and

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”).

Decision and further decision of the Director

10.  The Director analysed the Applicant’s claim on all applicable grounds.  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.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

11.  The Adjudicator analysed the Applicant’s claim on three applicable grounds but not under BOR 2.  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 standard and burden of proof, which lay with the Applicant.  She found the claim of the Applicant to be totally unreliable and without any factual basis in support.  To be accurate, the Adjudicator came to the conclusion that the Applicant had lied in respect of a number of alleged facts and went to great pains to detail all of them.  Nevertheless, she considered the outcome if the Applicant’s case were to be taken at its highest, but even so, she took the view there was no real risk that he would be subject to the proscribed ill-treatment; state protection would be available to him and internal relocation was a viable option.  The Adjudicator explained this reasoning in considerable detail as well.

Leave to apply for judicial review

12.  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 of Immigration 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

13.  The Applicant seeks to judicially review the Decisions of both the Director and the Adjudicator.  He gives no reasons for seeking review and no grounds in support.

Conclusion

14.  I have considered the papers, grounds and submissions 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 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.

15.  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