HUSSAIN ARIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1071/2017

[2018] HKCFI 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1071 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 from China on 8 March 2016 and was arrested by the police on the same day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 March 2016.  His NRF claim form was submitted on 23 May 2016.

2.  The Applicant attended a screening interview on 21 June 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 2 August 2016 and by Notice of Further Decision (re BOR 2) on 6 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 16 August 2016.  The Adjudicator of the TCAB, Ms Kay Ransome, heard him on 11 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 6 December 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 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 in 1982 in the Punjab, Pakistan.  He left school in 1995 and thereafter operated his own tailoring business in Jhelum.  In 2013, he returned to Khotian and lived with his wife and three children until he left for Hong Kong in March 2016.  The Applicant maintains he is a supporter of the Pakistan Muslim league (“Nawaz”) (“PMLN”) but held no official position.  In 2015, eight men came to his shop who were supporters of an opposition candidate in a local election.  They threatened the Applicant and asked him to close his shop, then left without further incident.  A month later, whilst driving home, the Applicant was stopped by a group of men with hockey sticks and pistols.  He was beaten with bare hands, he heard gun shots but was not shot.  The Applicant received only minor injuries.  He made a report to his local party political office but members of the party persuaded him not to report the matter to the police.  After this incident he was advised to leave Pakistan, which he did on 10 March 2016.

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:

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.

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.  The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence as to the general situation in Pakistan at present, which has altered slightly since the recent General Election.  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.  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.  In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon.  He failed to do so.

Decision of the Adjudicator

8.  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.  The Adjudicator was far from impressed by the Applicant’s veracity.  His story had moved from his party’s candidate winning the local election and him being attacked by supporters of the aggrieved losing candidate; to his party’s candidate losing the election and being attacked by supporters of the winning candidate; to an independent party winning which was not the party in power and being attacked by the supporters of the ruling party.  When this was pointed out to him to give him an opportunity to explain his inconsistency, he fell ill and could not remember.

9.  Nevertheless, the Adjudicator considered his case fully on all grounds and acknowledged the political tensions in Pakistan but was of the view that sufficient safeguards were in place for the Applicant to seek protection.  Given the low intensity and frequency of the alleged ill‑treatment, it was unlikely there was future risk of harm.

Leave to apply for judicial review

10.  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

11.  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 but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  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.

13.  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