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HCAL 1066/2017
[2019] HKCFI 344
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1066 of 2017
BETWEEN
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Yasar Mumtaz |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 1 February 2015 and surrendered to the Immigration Department on 4 March 2015. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 24 June 2015. He was convicted of being in possession of a forged ID card and of taking up employment without the permission of the Director of Immigration on 13 January 2018 and was sentenced to 15 months’ imprisonment. His NRF claim form was submitted on 10 July 2017.
2. The applicant attended a screening interview on 4 August 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 10 August 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 4 December 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 11 December 2017.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 December 2017 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 8 September 1988, in Dhalmood, Pakistan. He is single and originally worked as a farmer. In 2012 to 2013, he ran a cement business. Shortly after commencing his business, the applicant provided cement to family members for a building project. He obtained the cement from a Mr Aziz (“Aziz”). The deposit paid by his family soon ran out and monies were owed to Aziz. When he pressed his family members for the outstanding sum, he was assaulted and received bruising as a result of which he was attended to at a local hospital with pain killers. The applicant reported the incident to the police but as a result of this the family members then refused to pay at all. Aziz continued to press the applicant for money and the applicant continued to press his family for the money. The matter came to a head when one of them, along with five to six other men, came to the applicant’s house and starting shooting outside. The applicant fled but later reported the matter to the police and stayed in hiding. He later learnt that his brother had been badly injured during the incident and would be handicapped as a result. In the ensuing weeks, Aziz verbally threatened the applicant’s immediate family, as did his cousins who had contracted for the cement. Because of the continuous threats the applicant fled to 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 (“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 Adjudicator
7. 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 set out the law relevant to the claim and key legal principles including the burden and standard of proof. He considered relevant local COI and discussed it with the applicant. The Adjudicator did not accept the risk presented by the applicant from his cousins and in any event felt it was possible for the applicant to relocate.
Leave to apply for judicial review
8. 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
9. There were no grounds of review save for the complaint that the decision of the Adjudicator was unfair and unreasonable. He did not say in what way the Adjudicator had acted unfairly or unreasonably. 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: 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
10. Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and the limited grounds carefully. I have not found any error of law or procedure which would be applicable to this claim on the facts presented. 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 relied upon by the applicant and reasonable in all the circumstances.
11. 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 12th day of April 2019.
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(Marcus Wong)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12 April 2019
Yasar Mumtaz
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 12 April 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8231/17/8/269/P1621
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/2167/15 (QA T/C 1415/17 & RBCZ/12522/15)
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Form CALL-1
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