ATIF IKHLAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 426/2019

[2022] HKCFI 2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 426 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 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 14 September 2015 and surrendered to the Immigration Department on arrival.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 September 2015.  He was released upon recognisance on 12 October 2015.  His NRF claim form was submitted on 21 August 2017 and dealt with under the USM[1].

2.  The applicant attended a screening interview on 15 September 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 10 October 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Bruce Henry (“the Adjudicator”), heard his appeal on 19 December 2019.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 22 May 2020.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 2019 seeking to review a decision dated 31 December 2018.  The Form 86 refers to the Director of Immigration and the affirmation in support refers to the TCAB.  No such Decision can be found from either body.  Enquiries reveal no other applicant before the Director with the same name nor before the TCAB.  The High Court has no record of any other proceedings under this name. 

4.  Although the applicant did not request an oral hearing, the matter was listed for the applicant to appear in person.  The applicant attended court without any documentation and had a loose recollection of events.  He maintained that he had gone to a lawyer who had completed the forms but that he had given him a document but could not say what it was.  He denied having received the decisions of the TCAB dated 22 May 2020 but agreed that he had such a hearing before an expatriate tribunal.  He denied that the Immigration Department had told him of the TCAB’s decision, despite the intervening 2½ year gap.  Enquiries were made of the High Court registry to ensure that the papers had not been confused with any other case but no other litigant of a similar name could be found.  In order to make an efficient use of court time, the applicant was given leave to amend his Form 86 as to the correct date and was provided with a further copy of the decision of the TCAB to provide him with an opportunity to point to any grounds for judicial review having explained the same to him first.

Background

5.  The applicant is a Pakistani national.  He was born on 16 May 1994, in the Rawalpindi district of the Punjab. He is a Butt and Muslim.  He has received education up to collegiate level but has never been employed.  As a young man, whilst at college, the applicant joined the youth wing of the PTI[2]. After graduation in 2014, he became a formal member of the party.  The PTI and PMLN[3] parties were in competition with one another and from time to time supporters of both parties would brawl.  He was never hurt.  As this was a close community, the applicant was easily identified for his affiliation and was the subject of verbal threats in order to encourage him to switch parties.  As time went by, the nature of the threat increased to death threats although the applicant was never the subject of any attack or suffered any physical harm. As a consequence of the threats, and in fear of an actual attack, the applicant left his home village in 2014 and remained with friends until 2015.  He travelled to China from Islamabad on 11 September 2015 and entered Hong Kong illegally by boat on 14 September 2015.

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 Director

8.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[4].

Decision of the Adjudicator

9.  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 noted some factual errors within the applicant’s claim which he resolved with the applicant and ascertained that the applicant had not been harmed at any stage nor had his wider family.  As a result of the questions asked about the current situation in Pakistan the applicant changed the focus of his concern to a single individual and not a political party.  His evidence was generally inconsistent and not credible. He had in fact come to Hong Kong because he felt he had outlived his welcome as a guest of another family in Jhelum and someone had simply suggested he should come to Hong Kong.  He intimated that he wished to return to Pakistan now that conditions were more favourable.

Leave to apply for Judicial Review

10.  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

11.  There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness and simply states that the decision was unreasonable.  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

12.  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 and grounds 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[5].  

13.  In my judgment, this application is completely without merit.  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] Pakistan Tehreek-e-Insaf

[3] Pakistan Muslim League (Nawaz)

[4] Re Moshsin Ali CACV 54/2018; [2018] HKCA 549

[5] Nupur Mst v Director of Immigration [2018] HKCA 524