RAKHIM MUDASSAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1137/2017

[2018] HKCFI 1889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1137 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, sometime in late May 2014, from Shenzhen and was arrested by the police on 3 June 2014.  He was transferred to the Immigration Department the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 5 June 2014.  He was released upon recognisance on 10 July 2014.  His NRF claim form was submitted on 2 November 2015.

2.  The Applicant attended a screening interview on 3 February 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 27 April 2016 and by Notice of Further Decision (re BOR 2) on 28 March 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 9 May 2016.  The Adjudicator of the TCAB, Mr Allan J Wyeth, heard him on 24 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 8 December 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 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 Mangora, Rawalpindi, on 22 November 1989.  He is single, with eight years of formal education, and has no political affiliation.  Since 2012, he has been employed as a taxi driver.  In 2014, the Applicant had an argument with a passenger (“PO1”) over payment of his fare.  The argument led to a scuffle and the passenger declaring he was a police officer and refusing to pay.  Later that day, PO1 and four others, in plain clothes, came to the Applicant’s family home and seized the Applicant amidst a scuffle between the group of males and the Applicant’s family.  The Applicant was taken to a police station by van.  During the journey, the Applicant was verbally abused and physically assaulted by the group.

5.  In the police station, the Applicant was taken to a room and made to strip down to his underpants.  The room had approximately seven males inside, as well as PO1, whom the Applicant believed was in charge of the police station.  All the males were in plain clothes.  He was once again, verbally abused and physically assaulted and was slapped, punched and kicked, whilst PO1 stood to one side shouting “Kill him”.  That assault took place over five to seven minutes.  Thereafter, the Applicant was tied to a chair and tape was placed over his mouth.  He was then tied upside down from the hook of the ceiling fan, whilst the males took it in turns to hit the Applicant with a leather strap for about an hour.  At one point he was kicked in the head and fainted.

6.  When the Applicant regained consciousness, it was morning.  He found himself on the floor with his hands and feet tied.  PO1 threw water in his face and beat him with a leather strap.  PO1 then threatened to frame him for murder and drug trafficking.  That evening, he was verbally and physically abused once more by four police officers from the original group.  His limbs were tied to a chair and he was subjected to electric shock to his back and neck, which resulted in him losing consciousness.  When he regained consciousness the next morning, he was forcibly fingerprinted and pushed so hard that his chair fell backwards and he hit his head on the floor. Throughout these assaults, it was made clear to the Applicant that he was being assaulted for insulting PO1 and that he would be framed for offences as punishment.

7.  On the second day, the Applicant was released on bail.  He did not go to hospital; his wound was treated by his family; he treated his bruises with hot pads and ate some soup.  No complaint was made to the police as the police station which he had been detained within, was the superior station.  The Applicant then moved away from his home area to Rawla Kot in order to avoid PO1, however the police continued to search for him and threatened him through his family as well as assaulting the Applicant’s father.

8.  The Applicant could only stay in Rawla Kot for a short period of time as he was required to report his new address to the local police station and he feared that if he did so, his whereabouts would be reported to PO1.  This situation would arise no matter where he was in Pakistan.  As a result, the Applicant decided to leave Pakistan.  Since he did so, his family has moved two hours away to Mandibaha-UD-Din and, having registered their new address with the local police, were approached once more to discover the Applicant’s whereabouts.

The non-refoulement claim

9.  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 the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10.  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 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 and further decision of the Director

11.  The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as outlined above.  He considered a wide range of documentary evidence, and in particular, the protective measures available where it is necessary to seek protection from the police.  The Adjudicator was sceptical about the degree of harm done to the Applicant given that he did not seek hospital admission.  He concluded that the risk of harm to the Applicant was low.  Although the Applicant believed he had been framed for criminal offences, there was no evidence to suggest that had been done as he was allowed to leave the country on the strength of his own passport.  As he had made no effort whatsoever to seek redress from elsewhere for a localised complaint against a particular group of police officers, the Director took the view that state protection was available and that, in any event, it was clear that the Applicant could relocate.  In coming to these conclusions, 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, the Director 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 sent a letter dated 2 March 2017, in which he was informed of the Director’s intention to consider his claim under BOR2 and he was offered the opportunity to make further representations but he did not do so.

Decision of the Adjudicator

12.  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 elected not to give evidence.  The Adjudicator could not force him to do so but as a consequence, the Applicant was not in a position to explain matters further.  The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof.  He noted that the original incident was over a minor fee and resulted in no injury to either party and carried out in private.  The allegations against PO1 thereafter bore no logical relationship to those events and the Adjudicator rejected them.  The burden being upon the Applicant to establish his claim, the appeal failed.

Leave to apply for judicial review

13.  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

14.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific 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

15.  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 Adjudicator sought to engage in a joint endeavour with the Applicant and, even without his assistance, considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately, whether orally or on the papers.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

16.  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