Asif Farooq v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [Decision On Leave Application]

HCAL 5/2018

[2020] HKCFI 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 5 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 legally on 4 August 2001 and thereafter overstayed. He did not come to the attention of the authorities until 28 March 2006, when he made a claim under the UNHCR. On 5 May 2009, he surrendered to the Immigration Department and lodged a torture claim. He was released on recognisance on 17 May 2009. He withdrew this claim in 2012, stating he wished to return to Pakistan. The applicant submitted a non‑refoulement claim by way of written representation on 24 July, 27 August and 17 September 2015. His non-refoulement claim form was submitted on 1 June 2016.

2. The applicant attended a screening interview on 28 June and 8 August 2016. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 22 August 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), heard his appeal on 10 October 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. He refused his appeal on 5 December 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 January 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 3 March 1971, in the Punjab. He received 11 years of formal education and worked as a draftsman for two years. He is single and a Muslim. In 1998, the applicant’s father rented out two rooms of their family home to Abu Mursad and Abu Jandal, who they came to know belonged to LeJ, which was a terrorist organisation. When they became aware of their activities and of the movement of weapons into and from their home, the applicant and his father informed the police. This led to a police raid on the rooms and firearms being seized. Eventually, both Abu Mursad and Abu Jandal were arrested but were later released upon conditional bail. In early January 1999, the applicant was assaulted by LeJ members with hockey sticks and left unconscious. He was hospitalised and received sutures to wounds on his leg. His knee cap was dislocated and his face was swollen. The applicant remained in hospital for a week before being discharged. Whilst in hospital, the applicant believes that LeJ members set fire to the two rented rooms. As a result of that fire and telephone threats to the family, the family home was sold and they moved to rented property elsewhere in their home town but the applicant remained hidden in Sialkot and then Karachi before preparing to go to Dubai as he believed his life was in danger. Between February and May 1999, the applicant attempted to find employment in Dubai but failed. He returned to his home in Pakistan on the expiration of his visa. Thereafter, he was again attacked on several occasions by LeJ members and sought treatment for minor injuries. None of these were reported to the police. The applicant decided to flee to China where he came to know about refugee protection in Hong Kong. He returned to Pakistan and remained there between September 2000 and July 2001, working on a part‑time basis and moving between Karachi, Islamabad and Rawalpindi. He obtained a further China visa before returning by road to China and then coming to Hong Kong.

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...