RIAZ AHSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 923/2017

[2018] HKCFI 2147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 923 of 2017

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 12 August 2007 from China and surrendered to the Police on 15 August.  He was transferred to the Immigration Department on 17 August and was released upon recognisance on 30 August 2007.  For the purposes of this application, the Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 August 2013.  His NRF supplementary claim form was submitted on 20 October 2016.  As the Applicant had made a previous claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”), which had been rejected, his claim under the USM did not include re-consideration of that issue.  In 2015, the Applicant as convicted of taking up employment and sentenced to 22 months’ imprisonment.

2.  The Applicant was required to attend a screening interview on 23 November 2016.  He did attend, along with a representative from the Duty Lawyer Service (“DLS”), but was unwell and the interview could not proceed.  A medical certificate was provided to the Director on 24 November 2016 by the DLS.  The Applicant was then required to complete a written elaboration and clarification of information (“WEC”), which was completed on 13 December 2016.  The DLS, on behalf of the Applicant, requested another screening interview date by way of letters of 24 November and 14 December 2016.  The Director, having received the WEC, decided “ample time and reasonable opportunities, including screening interview and a submission of written elaboration and clarification, have been given...” and decided to proceed to consider the claim upon the information already given.

3.  The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds by Notice of Decision (“the Decision”) on 19 December 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Ball (“the Adjudicator”), heard his appeal on 22 August 2017.  The Adjudicator considered his appeal on all applicable grounds, including those under his original claim for the reasons given below, and refused his appeal on 15 November 2017.

4.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.  The Applicant is a Pakistani national.  He was born on 18 September 1985 in Buddar Jada, Pakistan.  He is Muslim and single.  He worked as a farmer.  In August 2006, the Applicant came to know a lady called Asma.  The two fell in love but kept the relationship secret.  At some stage in 2007, Asma’s family came to know of the relationship and the Applicant alleges he was assaulted by four of Asma’s brothers.  The assault was with bare hands, lasted 10 minutes and although the Applicant sought medical attention, he had no injuries as such and received painkiller only.  The brothers threatened to kill the Applicant; a threat which they repeated to the Applicant’s father the next day.  Fearing for his life, the Applicant arranged to obtain a China Visa and after about a week, during which time nothing happened to him, he fled the country and travelled to China by bus.

6.  Subsequent to his arrival in Hong Kong, the Applicant maintained contact with friends and family who sought to mediate between him and the family of Asma, however the Applicant alleges that a relative was killed by Asma’s family because of this.  He was able to provide documentary proof of the murder but not of any connection to himself.

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.  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 by the Board.

Decision of the Adjudicator

10.  The Adjudicator analysed the Applicant’s claim on all applicable grounds including those considered under his original claim as there had been subsequent intervening events which the adjudicator considered worthy of attention.  He outlined the history of the Applicant’s original application and the one before him, which was raised on 22 August 2013, just 17 days after his original application under the CIDTP was rejected. He arranged for an oral hearing and treated the appeal as a rehearing on all matters.  The Applicant therefore had the opportunity to add to or amend his original or subsequent claim.  The Adjudicator provided the applicant with additional COI and ensured that was translated to him before he proceeded with the hearing.  The Applicant adopted all of the information contained within the papers before the Adjudicator and did not wish to add anything further but was willing to answer questions.  In doing so, he elaborated upon his final few days in Pakistan in which he says that he did not remain at all times in his home village but travelled between that and his neighbouring village whilst waiting to leave Pakistan.  He also maintained that he had spoken personally with a witness to the murder of his relative and that the witness had heard the attacker says that the assault was due to his involvement with the Applicant. The FIR which he submitted however indicated that the murderer had taken revenge upon the applicant’s relative because of a previous robbery incident in which the relative had implicated the murderer.

11.  The Adjudicator analysed the Applicant’s claim meticulously; he correctly set out the law and key legal principles including the burden and applicable standards of proof.  He found the Applicant to be a poor witness, whose evidence was lacking in detail, incoherent and showed material inconsistencies.  He identified those instances and explained his reasoning.

Leave to apply for judicial review

12.  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 Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator with his application in order to obtain leave to judicially review them.

Grounds of review

13.  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.  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

14.  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.  Quite the opposite given that the Adjudicator considered the Applicant’s case on all grounds.  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 the Director’s decision to proceed upon the papers nor of their determinations generally, which were open to them on the facts and eminently 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