IQBAL MOHAMMAD ASIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1144/2017 [2018] HKCFI 1900 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1144 of 2017 BETWEEN Iqbal Mohammad Asif Applicant Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent 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; ( consideration of the documents only; or consideration of the documents and the Applicant being present/absent in open court; Order by The Honourable Mrs Justice Campbell Moffat: Leave to apply for Judicial Review be refused. Observations for the Applicant: Procedural history The Applicant entered Hong Kong legally on 5 September 2014, from India and was arrested by the police for overstaying on 26 October 2014. He was transferred to the Immigration Department the next day and submitted a non-refoulement ( ) claim by way of written representation on 28 October 2014. He was released upon recognisance on 25 November 2014. His NRF claim form was submitted on 18 December 2014. The Applicant attended screening interviews on 16 January and 4 March 2015, as well as providing answers to a list of questions. The Director of Immigration ( the Director ) dismissed his claim (not including that under BOR 2) by Notice of Decision ( the Decision ) on 13 March 2015 and by Notice of Further Decision (re BOR 2) on 19 June 2017. He appealed the Decision to the Torture Claims Appeal Board ( the TCAB ) on 26 March 2015. The adjudicator of the TCAB, Mr William Lam ( the Adjudicator ), heard him on 28 November 2017. He considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 15 December 2017. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. Background The Applicant is an Indian national. He was born in Kolkata on 20 January 1988. He is single with nine years of formal education. Between 2011 and 2014, the Applicant worked as a sales executive for a mobile phone company. The Applicant became a member of the Communist Party of India ( CPIM ) in 2012, which was the ruling party in his home area until 2011. In 2012, the All India Trinamool Congress party ( ) took control. In 2013 and 2014, the Applicant was approached to join the TMC but refused. This included one incident in which it was suggested that he might be assaulted but this was an indirect threat. In September 2014, the Applicant travelled to Hong Kong with his boss on business. It was whilst he was in Hong Kong that he heard that the threats against him had escalated to threats to kill. Since his application, his brother has been slapped by the same group of men because the Applicant had not returned to India and joined TMC. The non-refoulement claim Under the Unified Screening Mechanism ( ), the Applicant s claim is to be assessed on all applicable grounds which are: 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. 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 ( 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. 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. 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 ( 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. 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 and further decision of the Director The Director analysed the Applicant s claim on all applicable grounds on two separate occasions as outlined above, as well as requiring written answers to a list of questions. He considered a wide range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. He noted that the Applicant s story had altered in material respects under questioning and that documents, which the Applicant stated he would rely upon, never materialised. He concluded, given the factual basis of the claim, that the risk of harm to the Applicant was low. In so far as the Further Decision is concerned, the Applicant was sent a letter dated 10 May 2017, in which he was informed of the Director s intention to consider his claim under BOR 2 and he was offered the opportunity to make further representations, but he did not do so. Decision of the Adjudicator 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 correctly set out the law and key legal principles including the burden and standard of proof. He too was sceptical of the veracity of the Applicant s case but, even at its highest, took the view that it did not meet any of the relevant tests for protection. Leave to apply for judicial review 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 Director of Immigration and 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 There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any specific 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 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. Despite the onus being upon the Applicant, the Director and 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. The Applicant s case had no merit whatsoever. He has never been the subject of harm. He provided no evidence of his political affiliations and, at best, was a very minor member of his party. His account was not consistent and his application for refugee status was not made immediately upon entry to the country. There is no criticism of their determinations, which were open to them on the facts, eminently reasonable and procedurally sound. 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 5th day of September 2018. (Ms Queenie Mak) 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 granted, the Applicant or his solicitors must: 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)). Sent to the Applicant on 5/9/2018 Iqbal Mohammad Asif Applicant s ref. no: Nil. 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 5/9/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent s ref. no.: USM 1268/15/3/188/IN314 Director of Immigration Putative Interested Party s ref. no.: RBCZ 9001698/17 (formerly QA T/C 1140/14 and RBCZ 3030/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT {peZL{ h?Qk hGu h?Qk h?Qk h?Qk h?Qk h?Qk h964 ho>^ gdr< }tdt}tWt}tIt}t h?Qk h?Qk h?Qk h?Qk h?Qk hr< h?Qk h?Qk h964 h?Qk ytu_ ytu_ ytu_ ytu_ vlaSla h?Qk h?Qk ytu_ ytu_ ytu_ ytu_ {jaSB; h?Qk h?Qk h?Qk h?Qk hr< h?Qk hr< h?Qk hr< h?Qk h?Qk ytu_ gdr< ytu_ ~ri`SE h?Qk h?Qk h?Qk h?Qk hkYU hkYU hkYU hV5a hkYU gdkYU zi\O\O\@\O\O h=7( h?Qk h?Qk h?Qk hC6) h Mi h?Qk h?Qk h=7( h=7( gd^C gd^C gd^C gd^C h=7( hU}E h=7( gdr| gdzA gdzA gd @ ~o`o`oQoBoB h=7( hhZA teVeGet o\KC;2 h?Qk cYGY h?Qk h?Qk h?Qk wog^X^SN ^N@N@N xtxk\tX h?Qk :p6X ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ S!:V [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> mS X (LI'6 hB%, _%sAp hB%, _%sA (LI' & 6" Call 1 Judiciary HCVF8350R1.DOT Windows User Microsoft Office Word Call 1 Title <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" SelectedStyle="\APASixthEditionOfficeOnline.xsl" StyleName="APA" Version="6"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{C4D1475C-6F20-4038-AB78-E48F50375F9A}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8