HASSAN WALEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 307/2018

[2020] HKCFI 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 307 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 by boat on 31 October 2013 from China and was arrested by the police on the same day.  He was transferred to the Immigration Department on 3 November 2013.  The applicant submitted a non-refoulement claim by way of written representation on 7 and 11 November 2013.  He was released upon recognisance on 13 February 2014.  His non-refoulement claim form was submitted on 11 January 2017.

2.  The applicant was provided with a screening interview on 1 February 2017 but failed to attend because he had a hangover.  The Director of Immigration (“the Director”) did not consider this a reasonable explanation and proceeded to consider his claim upon the papers.  He dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 15 February 2017.  The applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Christian Patrick Carney (“the Adjudicator”), heard his appeal on 10 November 2017.  The Adjudicator considered his appeal on all applicable grounds but refused his appeal on 12 January 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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 1 May 1994, in Gujrat.  He is Muslim and of the Butt caste.  He has never worked in Pakistan.  His father operated a hotel/restaurant.  The applicant’s claim arises out of the distribution of land to his mother and her brother by his grandfather.  In 2012, the applicant’s uncle “Afzaal” threatened his mother in order to obtain her parcel of land.  In an incident in late 2012, Afzaal threatened the applicant’s mother and the applicant came to her aid by using foul language, which enraged Afzaal, who slapped him and threatened to kill him for his disrespect.  The applicant did not seek medical attention as he was unharmed and he did not report the matter to the police because Afzaal had warned him not to.  Because the applicant was worried about the death threat, he fled Pakistan in early 2013 and went to China, where he remained until October 2013, at which time he encountered three to four of Afzaal’s friends in Shenzhen and decided to come to Hong Kong.  His mother and father still live on the land in question and nothing has happened to them since he left.

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 applicant was not legally represented before the Adjudicator but he did have the opportunity to say anything he wished in addition to the facts disclosed upon the papers.  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 gave evidence with the assistance of a Punjabi interpreter.  That was only one incident which was relied upon by the applicant and the Adjudicator asked questions about it and the applicant answered those questions.  He was asked about his uncle’s political connections but could not identify the party to which he belonged.  Nevertheless, he felt that he had party connections everywhere and that therefore he could not re‑locate.  Having given the applicant an opportunity to answer the concerns of the Adjudicator, he thereafter correctly set out the law and key legal principles including the burden and standard of proof and applied them to the limited facts before him.

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 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

10.  There were outline grounds of review.  He maintains that the process was unfair; no one interpreted the materials, he had no legal representation and the interpreter only interpreted that which the Adjudicator wished him to interpret.  He was stressed and did not understand the proceedings.  It was also a long time ago and he had a poor recollection of events.  The applicant also asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness save for lack of legal representation and the poor quality of interpretation.  I am not sure how he would know that the interpretation was of poor quality unless he spoke English to a better standard than he suggests.  The facts covered by the interpretation were of the most basic kind. I doubt that there was room for a misunderstanding.  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: 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.

11.  As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director, or would have been if he had attended as planned.  He had the benefit of that legal advice for the presentation of his case, which was ultimately considered on the papers because of the conduct of the applicant and he does not suggest that anything was missing or had yet to be added.  Having been unsuccessful at that stage, the Director of Legal Aid considered whether his case had sufficient merit to grant him further representation before the TCAB and decided it did not.  That is not surprising.  There is no absolute right to free legal representation at all stages of proceedings[2].  The applicant already had the benefit of legal representation before the Director (if he had availed himself of it) and had nothing to add before the Adjudicator over and above the answers he gave to the questions posed.

12.  As to language assistance, the applicant had the benefit of an interpreter throughout.  He did not make any complaint about the lack of interpretation or lack of understanding at the time and all of the relevant areas were canvassed with him.  There is no merit in this ground.

13.  As for his poor recollection of events, that did not prejudice the applicant as he had all of the facts contained within the papers before the Adjudicator.  There were very few applicable facts.  This was not a complicated case.  The delay was to be placed at the door of the applicant in any event.

Conclusion

14.  Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and his general grounds carefully.  In particular, I have considered his claim as to lack of proper interpretation, which I have addressed above.  I have not found any error of law or procedure by the Adjudicator.  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; enquired about all relevant matters; gave the applicant a reasonable opportunity to state his case and enquired into inconsistencies appropriately.  There is no criticism of his determination, which was open to him on the facts and reasonable.  

15.  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