ALI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 561/2019

[2022] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 561 OF 2019

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;

     Leave to apply for judicial review be refused

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong illegally on 15 October 2015 having travelled from Pakistan via China in order to enter Hong Kong.  He was arrested by the police the next day and was transferred to the Immigration Department on 18 October 2015.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 October 2015 and 13 November 2015.  He was released upon recognisance on 28 November 2015.  His NRF claim form was submitted on 26 June 2017and dealt with under the USM[1].

2.  The applicant attended a screening interview on 26 July 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (including that under BOR 2) by Notice of Decision (“the Decision”) on 31 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Hayson Tse (“the Adjudicator”), heard his appeal on 24 August 2018 and 4 September 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 15 February 2019.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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.  He lived in Karachi with his wife and four children and worked as an auto mechanic in his own car repair shop.  In August 2014, the applicant became a member of Pakistan Tehreek-e-Insaf (“PTI”) and would assist in arranging political meetings.  In August 2015, several men came to his auto repair shop and demanded protection money.  They said they belonged to the Muttahida Qaumi Movement (“MQM”), a rival political party.  The applicant refused as he could not afford to pay and made a report immediately to the police.  The police suggested that he pay.  The following day, the men returned with pistols and demanded payment or, in its stead, that the applicant join MQM.  The applicant refused and was punched and slapped as a result.  The men then threatened to kill him before they left.  He did not need any medical assistance on this occasion and did not report the assault to the police.  The men returned on the following day with pistols but at this stage, the applicant had secured the attendance of other PTI members who were also armed with pistols. One of the MQM men fired into the air and a fist fight broke out in which the MQM members were disarmed and therefore fled the scene.  As a result of this second assault, the applicant closed his shop.  Four days later, several men came to his home address whilst his whole family were present, forced their way in and attacked him with an iron rod.  He was assaulted to the point of unconsciousness and was taken to a local hospital.  He required sutures to a wound on his leg and was hospitalised for three weeks.

5.  Upon discharge from hospital, the applicant went to stay at the home of a friend some two hours away from his home area.  He was with several PTI members one day when a fight broke out with members of the MQM.  The applicant fled the scene immediately and did not participate but the fight resulted in several people being injured and four of the PTI members died.  At no stage did the applicant seek assistance from the authorities before fleeing the country.  Despite the PTI being in power, the applicant considered himself to be at risk if he returned to Pakistan.

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, 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.

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 Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  The applicant testified but provided no new documentation and adopted his evidence previously produced within his claim form.  He correctly set out the law and key legal principles including the burden and standard of proof.

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 him/her.

Grounds of review

10.  There were no grounds of review.  The applicant seeks 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 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.

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.  There is no criticism of his determination, which was open to him 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.

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