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

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

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

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...