IQBAL QAMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 254/2018

[2020] HKCFI 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 254 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 illegally on 26 January 2016 and surrendered to the Immigration Department the next day.  He was released upon recognisance on 2 March 2016.  The applicant submitted a non‑refoulement claim by way of written representation on 6 July 2016.  On 27 October 2016, he was convicted of using a false identity card, possessing a false identity card, taking up employment without the permission of the Director of Immigration (“the Director”) and theft; for which he received 15 months’ imprisonment.  His non-refoulement claim form was submitted on 29 May 2017.

2.  The applicant attended a screening interview on 21 June 2017.  The Director dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 23 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Anthony WM Yuen (“the Adjudicator”), heard his appeal on 6 November and 8 December 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 18 January 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 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 21 December 1994, in Mirpur. He is of the Jutt caste and a Muslim.  He received 12 years of formal education and is single.  The applicant’s claim arises out of the ownership of land, which was divided between his mother and her brother “Zafar” in 2012.  His uncle was a member of the Pakistan Muslim League (Nawaz) (“PML(N)”).  The family lived together with his uncle.  In 2014, Zafar wished to sell the whole plot of land to another PML(N) member “Chaudhary”.  In order to do that, he needed the applicant’s mother to transfer her title in the land to Zafar.  She refused and instead, she transferred the land to the applicant.  As a result, Zafar sought to persuade the applicant to transfer his interest in the land, which he also refused to do.  In response, Zafar verbally threatened the applicant three or four times and this led the applicant’s family to move to rented accommodation elsewhere.  Thereafter, Zafar made verbal threats over the phone to the applicant and the applicant approached the village elders to seek assistance.  He was advised to report the matter to the police, which he did on 1 July 2015, but the police said they could not help.  The applicant believed this to be because the complaint was against Zafar.  On 13 July 2015, the applicant’s rented house was vandalised by a group of five unknown males claiming to be from Zafar.  No one was harmed however.  The incident was immediately reported to the police but they said they could not help and that the applicant should accede to his uncle’s request.  There were two further incidents in 2015, a traffic accident and a shooting in a snooker hall, which appear to have no connection to Zafar save for a suspicion by the applicant which is not made out on the papers.  In any event, the applicant decided to leave Pakistan and came to Hong Kong via China.

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 (“the 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 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

7.  The applicant seeks to review the decisions of both the Director and the Adjudicator.  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[1].

Decision of the Adjudicator

8.  The hearing before the Adjudicator took place some five to six months after the Director’s Decision and 18 months after first lodging a claim.  The applicant was heard on two separate occasions.  This was specifically to allow the applicant to adduce evidence which he said was in the hands of his maternal uncle at the time of the first hearing.  The hearing was therefore adjourned for a month to allow time for the applicant to present his supporting evidence in respect of the complaint made to the police and the fact that they had failed to act upon it.  However, at the subsequent hearing, the applicant failed to produce any supporting documentation and asked for more time.  As he had been in Hong Kong for almost two years at this stage, the Adjudicator considered that the applicant had had sufficient time to prepare his case and rightly refused a further extension.

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 noted that this was a family dispute over land and that his uncle had never physically harmed him.  The violence, at its highest, amounted to an assault upon the family home but not upon any member of the family.  Other incidents he raised, did not appear to be connected to Zafar.  Having given the applicant an opportunity to be heard, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof and found that the applicant had not satisfied the burden placed upon him of establishing the relevant risk of harm under any head of claim.

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.  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

11.  The applicant maintains that the decision of the Adjudicator was unfair and unreasonable and that he was given insufficient time to obtain the relevant evidence before the hearing.  He does not say what that evidence may have been.  I can see from the papers that it appears to relate to proof that the applicant made a complaint to the police.  It is not evidence of any actual harm being perpetrated against the applicant.  In essence he seeks a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness other than the lack of time to obtain evidence. An applicant has a duty to state the grounds of their intended judicial review and show 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

12.  Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers and the limited grounds carefully.  I have looked in particular inter alia, into the suggestion that the applicant was, in some way, prejudiced by his inability to obtain evidence and not being provided with sufficient time to do so.  I have not found that to be the case.  He had almost two years to substantiate his claim and he maintained that in November 2017, the documents he required were in the hands of a family member.  If that was the case, there should have been no problem at all with obtaining them before the first hearing let alone the second.  In any event, they did not take the matter further.  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 including time to obtain the requisite evidence and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.  

13.  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