SHANAN ABBAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1088/2017

[2018] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1088 of 2017

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 29 November 2013, from China and was arrested by the police on 1 December 2013.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 January 2014.  He was thereafter prosecuted for taking up employment and unlawfully remaining, for which he received 12 months’ imprisonment.  After his discharge on 1 August 2014, he was detained at Castle Peak until he was released upon recognisance on 13 September 2014.  His NRF claim form was submitted on 21 January 2016.

2.  The Applicant attended a screening interview on 13 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 20 May 2016 and by Notice of Further Decision (re BOR 2) on 27 September 2017.  The Adjudicator of the TCAB, Ms Corinna Tai, heard him on 17 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  She refused his appeal on 1 December 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 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 on 30 September 1989, in the Punjab, is married and is a Muslim.  The thrust of the Applicant’s case arises out of a clash between two families and two political parties.  The Applicant’s family supports the Pakistan People’s Party (“PPP”) and the Chaudhary family supports the Pakistan Muslim League (‘PML”).  They had originally both supported PML but the Applicant’s grandfather switched to PPP, which caused tension and, according to the Applicant, the Chaudhary family had his grandfather killed because of it.  The Applicant complains that many members of his family have been detained by reason of false allegations of murder made by the Chaudhary family and 16 of them have been sentenced to life imprisonment.  He also maintains that he was constantly subject to attacks in the street by members of PML and was hospitalised as a result.  Reports were made to the police from time to time but attacks such as this were not considered serious.  The tension escalated in 2013, when he believed a friend had been shot and murdered whilst in his uncle’s car, because the attackers mistakenly believed that the Applicant and his brothers were in the car.  As a result he fled to Bhimber, some two hours from his home, where he stayed for several months until he went to Lahore for six weeks, which was just 4 km away from the Applicant’s village for six weeks.  Nothing happened to him at either place.  At the end of 2013, the Applicant went to China and from there, entered Hong Kong illegally.

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 range of documentary evidence as to the general situation in Pakistan at present.  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, which he did.

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 Applicant was provided with an opportunity to supplement his evidence and answered all issues raised.  In so doing, the Adjudicator came to the view that there was very little percipient evidence given by the Applicant and that the majority of his claims were based upon hearsay and speculation.  She nevertheless considered his claim under all heads.

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.  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

10.  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

11.  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.

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