KHAN TAIMOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 106/2018

[2018] HKCFI 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 106 of 2018

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 on illegally on 23 August 2007 from Pakistan via Thailand and China, and was arrested by the police on 20 November 2007.  He was transferred to the Immigration Department on 22 November 2007.  The Applicant submitted a non‑refoulement (“NRF”) claim by way of written representation on 7 March 2008.  He was released upon recognisance on 12 December 2007.  On 20 March 2013, the Applicant was convicted of robbery and sentenced to eight years and six months’ imprisonment.  His NRF claim form was submitted on 4 November 2013, during that term of imprisonment.

2.  The Applicant attended a screening interview on 6 November 2013.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 4 July 2017.  The Adjudicator of the TCAB, Sin Ming-hei (“the Adjudicator”), heard him on 10 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 15 December 2012.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 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 in the Punjab on 10 December 1986 and is a Sunni Muslim with no political affiliation.  The claim arises out of the Applicant’s refusal to marry a lady called Sabah, who is a Shia Muslim.

5.  In July 2007, Sabah’s brother accused the Applicant of having sex with his sister and insisted that the Applicant marry her and become a Shia.  The Applicant denied it and refused.  The brother then had his friends tie the Applicant up and, over a period of time and intermittently, they assaulted him.  After 24 hours, the Applicant was released.  He did not receive any serious injury and did not attend a hospital or see a doctor, nor did he report the assault to the police. A few weeks later, the brother and his friends, who carried weapons including choppers, further verbally threatened the Applicant but did no more than that.  This second incident was reported to the police, who took the view that it was a private matter and should be resolved between them.  He did not report the first incident at this time.

6.  Following the second incident, the Applicant left his home area and eventually came to Hong Kong as he maintained he feared repercussions from Sabah’s family.

The non-refoulement claim

7.  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.

8.  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 of the Director

9.  The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence.  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.  

Decision of the Adjudicator

10.  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 correctly set out the law and key legal principles including the burden and standard of proof.  He, like the Director, found little merit in the Applicant’s claim.  This was a purely private dispute, which did not arise out of either religion or politics.  Sabah’s family felt shamed by the sexual relationship and wished to have their honour, and that of Sabah, restored.  No real harm had been inflicted upon the Applicant and the level of risk of harm if he returned to Pakistan was low.

Leave to apply for judicial review

11.  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

12.  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

13.  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.

14.  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