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HCAL 431/2019
[2022] HKCFI 680
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 431 OF 2019
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Ayub Waqas |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Procedural history
1. The applicant entered Hong Kong illegally on 4 August 2015 by boat from China and surrendered to the Immigration Department on 13 August 2015[1]. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 November 2015. His NRF claim form was submitted on 22 March 2018 and he was dealt with under the USM[2].
2. The applicant attended a screening interview on 25 April 2018. The Director of Immigration (“the Director”) dismissed his claim on all grounds including BOR2 by Notice of Decision (“the Decision”) on 27 April 2018. He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Gina Towney (“the Adjudicator”), heard his appeal on 7 November 2018. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 20 December 2018.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019 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 17 May 1990, near Rawalpindi in the Punjab. He is from the Janjua clan and a Sunni Muslim. His first language is Urdu. He graduated from the KRL Institute of Technology in 2014 with a major in electrical technology and thereafter worked as a salesman in a computer accessories shop. The applicant describes some random attacks by Shia Muslims upon Sunni Muslims although they were not targeted against him and he came to no real harm. He relates an incident in 2013 in which he was present when there was a religious attack in which he says people were hit and killed. The applicant himself was hit in the leg with a metal rod and suffered a wound which was cared for at home. In 2014, the applicant states that he was kidnapped by Shia Muslims. He was taken to an unknown location, hooded and assaulted over a number of hours but not with weapons. He was eventually released. He suffered only bruising as a result. Some six months later, he was kidnapped once more by the same people and severely beaten with weapons. He was detained for two days without food or water. He eventually lost consciousness and woke up some three to four km from home. He reported neither incident to the police. For several months the applicant left his home village to live with relatives in Islamabad returning home in May 2015. Whilst in his local mosque a fight broke out between Sunni and Shia Muslims and the applicant was caught up in it although he managed to get away without any harm. The following day, the applicant was kidnapped once more but this time detained for three days without food. He was verbally abused for his faith and assaulted. He did not require medical intervention.
5. It was the applicant’s brother-in-law who suggested he come to Hong Kong via China, which he did using his own passport on 25 July 2015. Once in China, fellow Pakistanis helped him enter Hong Kong by boat.
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 and further decision of the Director
8. 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[3].
Decision of the Adjudicator
9. The Adjudicator analysed the applicant’s claim on all applicable grounds. She had available to her the NRF claim form and the notes of interview carried out by the Immigration Department on 25 April 2018 in which the applicant supplemented his claim particulars. She arranged for an oral hearing and treated the appeal as a rehearing. In that hearing the applicant was not clear as to exactly whom he feared other than the ‘Shia’ generally and was unable to identify persons whom he could confirm still lived in his home area. Whilst he believed it was the same group that were involved in all of the abuse he suffered, he was not in a position to identify any of them. His evidence was vague as to all of the incidents raised by him and he was unable to answer for obvious inconsistencies. Having given the applicant every opportunity to clarify his position, the Adjudicator outlined the facts, correctly set out the law and key legal principles including the burden and standard of proof and applied them to the facts as she found them to be.
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 those bodies or persons when dealing with his application in order to obtain leave to judicially review them.
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 or unreasonableness. 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[4].
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.
Dated the 14th day of March 2022.
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(Trista Wong) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent/s and such interested parties as may be directed by the court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the registrar;
(i) a copy of the sealed judgement or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice Order 59, rule 5(1); and
d) the registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served Order 59 rule 5(3); and
e) comply with Order 59 the Rules of the High Court to properly progress the appeal.
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Sent to the Applicant
on 14/03/2022
Ayub Waqas
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/03/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11456/18/5/41/P2225
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1012/18 (formerly
RBCZ 14330/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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