HCAL618/2017
[2018] HKCFI 855
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 618 of 2017
BETWEEN
Ahmad Saeed
Applicant
and
Torture Claims Appeal Board /
Putative Respondent
and
Director of Immigration
Putative
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 illegally on 22 September 2013 and surrendered to the authorities on 5 November 2013, at which point he was released upon recognisance. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 3 March 2014. His NRF claim form was submitted on 17 September 2015. He attended a screening interview on 10 November 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 18 November 2015 and by Notice of Further Decision (re BOR 2) on 14 March 2017, as amended on 6 April 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 30 November 2015. The Adjudicator of the TCAB, Mr William Lam, heard him on all matters save for BOR 2, on 8 September 2016. The Adjudicator considered his appeal on all applicable grounds save for BOR 2. He refused his appeal on 10 March 2017. The Applicant appealed the Further Decision of the Director under BOR 2 on 18 April 2017 and the Adjudicator dismissed that appeal on 11 August 2017 without hearing.
2. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 September 2017 and did not request an oral hearing. Nor did he apply for legal aid. The matter was therefore considered on the papers.
Background
3. The Applicant is a Pakistani national. He was born on 21 November 1980 in Rawalpindi. He is married with one son. His wife and child live in Rawalpindi. Between 2003 and 2006 he was a farmer. Between 2006 and 2009 he worked as a driver and thereafter, until 2013, he was labourer. He and his family supported the Pakistan Peoples Party (“PPP”) but were not members of the party and had no other political connections. This claim arises from the disputed ownership of land belonging to his family. The dispute was primarily between his father and uncle but also included himself and his cousins. His uncle’s family were members of the Pakistan Muslim League (“PML”). In 2008, it culminated in what the Applicant alleges was an attempt by the Uncle to ruin the annual crop, which he denied, but his cousin confessed to the act and they ended up in a fight for which both parties were equally responsible. The damage to the crops and the altercation thereafter were not reported to the police as the Applicant felt, correctly, that it was a family matter. The discord between the two parts of the family continued and in one incident the Applicant’s cousin and two others subjected him to a beating but despite his cousin being in possession of a large knife, he received only bruising from being hit with the handle end. In another incident the Applicant says he was shot at by his cousin but he was not hit. This incident was reported to the police. The Applicant maintains it was not followed up because he believed that the police had been bribed by his uncle. Despite the shooting, when the Applicant’s cousin found him some days later alone on his land and threatened once more to kill him, the Applicant refused and shouted back in abusive language. This resulted in a fight from which the Applicant received bruises and was scratched and bleeding.
4. Although the Applicant had refused to cave into his cousin’s demands in this last incident, he decided to move to Rawalpindi where he remained for 1½ years without incident. Whilst he was away, the uncle took over the land. In 2012, the Applicant attempted a negotiation with his uncle over ownership of them and but discord continued and the Applicant returned to Rawalpindi. He remained there for 10 months without incident. Because his cousin still bore him ill will and was looking for him, he decided to leave Pakistan. He left freely on 11 September 2013, travelling first to China and then entering Hong Kong illegally on 22 September. Since that date, according to the Applicant, his brother was killed by his cousin and his siblings and mother had moved to Rawalpindi.
The non-refoulement claim
5. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was ultimately 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 Applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their 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 Applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their 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 Applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their 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 Applicants must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or the victim of genocide or otherwise be deprived of his right under BOR 2.
6. This application is in respect of BOR 2 alone and is against the decision of the Adjudicator alone. It is the duty of the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. Under BOR 2, an Applicant’s right to life is protected. The Applicant has the burden of showing that there is a personal and real risk of his absolute and non-derogable right to life under the HKBOR being violated upon his return to Pakistan. As the Adjudicator took into account the process the Applicant underwent before the Director as well as his hearing before the Adjudicator on 8 September 2016, I have considered the whole process in order to ascertain whether the Applicant has shown any arguable issue.
Decision and further decision of the Director
7. The Director analysed the Applicant’s claim on all applicable grounds. He considered a wide range of documentary evidence and held an interview with 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. He had not notified the Director of any change of address and therefore has not made out any case for why he would not have received the letter of 24 February 2017. He clearly received the Notification of Further Decision which was posted to the same address. 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
8. The Adjudicator analysed the Applicant’s claim on all applicable grounds on two separate occasions. He arranged for an oral hearing on 8 September 2016 for all matters save for BOR 2 and treated the appeal as a rehearing. He considered whether the Applicant should be afforded an opportunity to appear at a further oral hearing when the Applicant appealed the Further Decision of the Director and decided that in the circumstances of the case, there was no necessity to do so. This was open to him to do. On both occasions he correctly set out the law and key legal principles including the burden and standard of proof and correctly addressed himself on the issue of considering an appeal on the papers.
Leave to apply for judicial review
9. Judicial review is a public law remedy and is not available to resolve private matters. 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 only in respect of his decision on his BOR 2 claim. It cannot be a rehearing of that claim. The Applicant must instead 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 him.
Grounds of review
10. The Applicant submitted the following grounds of review against the Decision of the Adjudicator, dated 11 August 2017, which is in respect of his BOR 2 claim only. These grounds are identical in format to other applications for leave to judicially review the Director and Adjudicator and are not entirely clear. Doing the best I can to identify the true issues relied upon, the following grounds are the subject of complaint:
(i) The Applicant did not receive any invitation letter from immigration to ask for additional facts and grounds in respect of his BOR 2 claim . By this, I take it that the Applicant is referring to a letter of 24 February 2017, which is referred to at page 5 of his bundle in the letter to him from the Immigration Department dated 14 March 2017, and which informs him that his claim under BOR 2 has been rejected. The letter of 24 February 2017, informed him of the intention of the Director to assess his claim under BOR 2 and of his right to make further representations. The Applicant did not do so. He is under a duty to ensure that he informs the Director of any change of address. The letter of the 1 March 2017, was received by him. He gives no explanation why the letter of the 24 February 2017, would not have been received. Be that as it may, the Director considered his original application and the facts contained therein, which gave no indication whatsoever that the Applicant was at risk of arbitrarily being deprived of his life in the circumstances arising for a BOR 2 claim. BOR 2 has a much narrower factual and legal basis than the other heads of claim and it was perfectly reasonable and procedurally fair in all the circumstances for the Director to proceed to make a Decision in the light of the notice given. No further submissions were made after the Applicant received the letter of 14 March notifying him of the Further Decision and it is therefore no surprise that the Adjudicator took a similar view when he came to deal with the BOR 2 claim, especially as the Applicant had every opportunity to submit further documentation within his appeal bundle dated 18 April 2017. The Applicant has made no indication that he has anything further to say on this issue save that, sadly, a relative had recently died from what he alleges to be a murder by his relatives.
(ii) The Applicant was not given legal representation before the TCAB or for the purposes of judicial review in respect of BOR 2 . This argument stands or falls in the same way as the one above. BOR 2 covers an inherent right to life as opposed to a risk of torture or cruel, inhuman or degrading treatment or punishment, or of persecution. The Applicant failed to establish the much lower standard of proof in respect of the other heads of claim and it necessarily follows that he would unable to establish this higher standard of proof which would need to show that he is at a real and personal risk of losing his life. Whether or not an Applicant is provided with publicly funded legal representation before the TCAB is a matter for the Director of Legal Aid (“DLA”) and within his discretion to refuse if he believes there is no merit in the claim. The Applicant has not provided either his application for legal aid on appeal or the notification of refusal and I am not in a position to be able to consider whether the DLA acted improperly in so doing. It is for the Applicant to raise this issue sufficiently for the court to consider it. On the facts before me, I can see no grounds for finding that an issue suitable for judicial review has been raised.
(iii) He was not provided with the services of an interpreter for such claim . This would necessarily follow from the decision that there was no need to call for an oral hearing. The Applicant has been in Hong Kong since 2013 and clearly has some proficiency in English. His claim form and supporting documentation indicates he is able to produce documentation in the English language and has done so. The difficulty he has is that his claim under BOR 2 had no merit whatsoever. The Applicant has, in any event, not established whether he made such a request and why his request was refused.
(iv) The Adjudicator relied upon the COI and previous grounds, which supported rejection of the claim . That sometimes happens. It may also support a claim if it is properly made out. The COI is a valuable source of relevant information and was taken into consideration. It was open to the Applicant to submit alternative or additional documentation to support any argument he had as to the weaknesses of the COI available or to suggest alternative objective viewpoints. He did not do so.
(v) Life on the ground is different to COI information . The Applicant was heard before the Director and the Adjudicator when he had the opportunity to explain the facts he relied upon. He does not provide any particulars as to how this ground is applicable to a claim under BOR 2.
(vi) There was bias. The Applicant did not identify the manner in which the Adjudicator dealt with his claim which signified any bias. He had the facts before him which had been analysed by the Director and had been the subject of an earlier oral hearing when all of the facts were rehearsed as well as having the evidence from that oral hearing before him and which canvassed everything the Applicant wished to say. If any bias had been displayed, it was incumbent upon the Applicant to identify it.
(vii) The Adjudicator used a formulaic approach . The Applicant did not provide any examples of how he says that the Adjudicator approached his appeal in a formulaic manner to his detriment. There will inevitably some degree of formula in approaching this type of claim as there is when approaching other areas of judicial activity which form the subject matter of review. The question is whether the approach adopted was procedurally incorrect, unreasonable or unfair and whether the Adjudicator made any error of law. Given his lack of explanation of this ground of review, I am unable to assess if this was the case. A perusal of the papers available to me, do not suggest this was the case.
(viii) There was no oral hearing . There is no inalienable duty to hold an oral hearing on appeal. The Applicant had been heard on the other heads of claim and there was no suggestion within the original claim that BOR 2 would be triggered. Therefore, it was perfectly reasonable for the Adjudicator to take the view no further hearing was necessary. My comments at subparagraph (i) above apply. No new facts had been submitted on appeal to the Adjudicator to suggest that anything new had occurred which would have altered the Applicant’s position under BOR 2. There was nothing which would suggest that the Adjudicator acted unfairly in taking the view that a further oral hearing was unnecessary.
Conclusion
11. In an application for leave to apply for judicial review of the decision by the Adjudicator in respect of the Applicant’s BOR 2 claim, the court is required to examine whether the Adjudicator made any error of law or procedure, or handled the matter in any way unreasonably or which was not in compliance with the highest levels of fairness: Secretary for Justice v Sakthevel Prabakar (2004) 7 HKCFAR 187 .
12. 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 Adjudicator engaged with the Applicant in the original hearing 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.
13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review against the decision to reject his claim under BOR 2 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 9th day of May 2018.
(Queenie Mak)
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 granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 9/5/2018
Ahmad Saeed
Applicant’s ref. no:
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 9/5/2018
Torture Claims Appeal Board /Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: Director of Immigration Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1