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HCAL 170/2018
[2019] HKCFI 18
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 of 2018
BETWEEN
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Raza Waleed |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
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 18 March 2016 from China and was arrested by the police on the same day for illegally remaining. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 March 2016. He was released upon recognisance on 21 April 2016. His NRF claim form was submitted on 24 May 2016.
2. The applicant attended a screening interview on 24 June 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 14 July 2016 and by Notice of Further Decision (re BOR 2) on 22 March 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 13 December 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 23 January 2018.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 February 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 11 June 1991, in Azad Kashmir. He had 10 years of formal education and worked as a salesman from 2010 to 2013. The applicant owned a parcel of land, which a man called “Shakeel” wished to takeover. Shakeel was a prominent member of the Pakistan Peoples Party (“PPP”). In December 2014, he and 10 to 15 men came to the applicant’s house to demand that the applicant hand over the land to Shakeel for free. Shakeel and these men were armed with wooden clubs, knives, pistols and a Kalshnikov rifle. He threatened to kill the applicant if he did not hand over his land. He then left without harming the applicant. A few days later, Shakeel and 20 men returned to his home. They were carrying guns. Shakeel once more demanded transfer of the land. The applicant was punched, kicked and hit with a wooden club for 15 to 20 minutes. He attended a local clinic for treatment and was bandaged and prescribed medication for his injuries which did not appear to be serious. The applicant reported this incident to the police but no arrest ensued. In order to avoid Shakeel, the applicant left his home and went to Samwal Sharif but in March 2015, Shakeel tracked him down and along with five to six unknown men carrying Kalashnikov rifles and pistols, he was once again slapped, punched and kicked. Shots were fired into the air. The attack lasted 10 minutes before the applicant was able to escape. After that incident, the applicant learned that Shakeel had taken over his land. The applicant went to Islamabad and then to Lahore for fear of being found and eventually came to Hong Kong.
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 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 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
7. The applicant seeks to review the Decision of the Adjudicator. The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He explained the purpose of the hearing and the procedure to be adopted. The applicant had nothing to add. Having given the applicant a fair opportunity to add to the facts already before the him, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof. He analysed the facts, applied the law to them and explained why he found that the applicant had not established his case to the requisite standard.
Leave to apply for judicial review
8. 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. 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
9. There were no grounds of review. The applicant simply stated that it was unfair. He 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 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
10. 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 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.
11. 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.
Dated the 30th day of April 2019.
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(Marcus Wong)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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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)).
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Sent to the Applicant on 30 April 2019
Raza Waleed
Applicant’s ref. no:
Nil.
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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 30 April 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4231/16/7/201/P1061
Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000616/17 (formerly RBCZ 11232/16)
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Form CALL-1
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