Khan Mohammed Shadab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL625/2017

[2018] HKCFI 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 625 of 2017

BETWEEN

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 on 17 May 2014 on a visitor’s visa.  He overstayed and was arrested on 10 June 2014.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 11 June 2014.  His NRF claim form was submitted on 21 December 2015, with the assistance of the Duty Lawyer Service (“DLS”).  The Applicant attended a screening interview on 28 January 2016.  He was represented by the DLS at this interview and he provided further information to the immigration officer, acting on behalf of the Director of Immigration (“the Director”), during the interview process.  The Director dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 6 April 2016 and by Notice of Further Decision (re BOR 2) on 26 January 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Kevin Ball, invited him to attend an oral hearing.  He did not attend.  The Adjudicator considered his appeal on the papers on all applicable grounds including BOR 2.  His appeal was dismissed on 7 July 2017.

2.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017 against the Decision of the Adjudicator alone.  He did not request an oral hearing.  The matter was therefore considered upon the papers.

Background

3.The Applicant is an Indian national.  He was born in Kolkota, India on 30 January 1986 and is a Muslim.  At the end of 2012, he met and fell in love with a lady called Sangeeta, who is a Hindu.  Her family deeply disapproved of the relationship.  In June 2013, Sangeeta’s father, brother and four to five unknown males set upon the Applicant and beat him with wooden sticks.  He was warned not to see Sangeeta again.  They threatened to kill him.  He attended a local clinic for medical treatment and was given pain killers and ointment for a swollen right arm and bleeding knee.  Thereafter, he reported the matter to the police who were unsympathetic and said that he should not have dated a Hindu.  The couple kept their relationship secret until April 2014, when they made plans to marry.  On the day of the marriage, Sangeeta was beaten by her father and prevented from attending.  A few days later, Sangeeta’s father, brother and four to five unknown males assaulted him with wooden sticks once again and threatened to kill him but the Applicant was able to escape.  He once again attended a local hospital and had his injuries bandaged.  He was also given pain killers.  He did not report the assault to the police on this occasion because of the attitude of the police on the last occasion.  Subsequent to these events, the Applicant spoke with Sangeeta who told him that her father wanted to kill him.

4.Thereafter, the Applicant visited Hong Kong between 18 and 31 December 2013 for business but returned to India and eventually entered Hong Kong on a visitor’s visa on 17 May 2014, when he overstayed.

The issues before the Adjudicator

5.The issues before the Adjudicator were whether the Applicant had proved that he was at real risk of death or serious harm if he were to be refouled to India and whether he had established a legal right to protection from such refoulement on any of the applicable grounds.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds on two separate occasions, which are:

i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

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”);

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”); and

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”).

Decision and further decision of the Director

7.It is the duty of 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 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.  He must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is essentially whether there is a real risk or real chance of the occurrence or recurrence of the harm of which he fears.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing but the Applicant did not attend.  Nor did he respond to the notification under section 15 to schedule 1A of the Ordinance and has had no contact with the TCAB thereafter.  The Adjudicator was therefore forced to consider the appeal by way of rehearing upon the papers.  The Applicant fell at the first hurdle in so far as the Adjudicator did not consider his case a credible one and gave his reasons for so finding.  Nevertheless, the Adjudicator gave the benefit of the doubt to the Applicant in the circumstances of his non‑attendance and considered the Applicant’s case at its highest.  In so doing, he made findings of fact which he applied to the low standard of proof required of the Applicant to show that he is at real risk of the ill treatment, which he claims to fear, and whether that risk is sufficient to establish any of the grounds for non-refoulement protection.  In so doing, he found that the risk of ill-treatment from Sangeeta’s relatives was low.  That risk was further reduced because there was reasonable state protection in his case and the availability of relocation. That being the case, he found the level of risk to the Applicant was below that which triggered international protection.

Leave to apply for judicial review

9.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

10.The Applicant complains that:

i. He did not receive any invitation letter by which the Director asked for additional facts or grounds.  I presume that the Applicant is referring to the appellate procedure as he had the opportunity to be heard before the Director and was represented at that time.  He was thereafter represented in preparing his grounds of appeal.  If he did not receive further correspondence, then he could not have been living at the address he was required to live at and he does not submit that he had changed address at any time.  In any event, the Applicant does not say in what way he would have wished to add to what was a simple set of facts fully aired before the Director and fully recorded.  The Applicant is not further assisted by the fact that he wholly failed to correspond with the TCAB once he had submitted his grounds of appeal.

ii. The Adjudicator relied upon the COI information and previous facts which supported rejection of his claim.  As to his second ground of review, the Adjudicator was left with no choice but to deal with the matter on the papers having done everything procedurally, which could be done to give the Applicant an opportunity to attend and be heard.  Nevertheless, the Adjudicator considered the Applicant’s case at its highest, giving him the benefit of the doubt but did not find that a case had been made out when applying the legal principles to the facts presented in the best possible light for the Applicant.

iii. The Adjudicator was biased.  As to the third ground of review, the Applicant does not say in what way the Adjudicator was biased.  A thorough reading of the Decision suggests that the Adjudicator bent over backwards to be fair to the Applicant despite his initial view that the Applicant’s claim was incredible.  The fact that he had only the papers in the case to rely upon is to be laid at the door of the Applicant.

iv. The Adjudicator employed a formulaic approach resulting in an unfair assessment of the danger to the Applicant’s life.  As to the fourth ground of review, there is inevitably some degree of formula to the application of legal principles to facts in each case.  However, the Adjudicator outlined those legal principles and then applied them to the facts peculiar to the Applicant’s case and there was nothing formulaic in the manner in which he did so.  There is no question but that the Adjudicator applied an independent and objective approach specific to the Applicant’s case.

v. Refused the appeal without an oral hearing.  As for the failure to be given an oral hearing, the Applicant failed to attend on the given date.  A notice pursuant to section 15 of schedule 1A of the Immigration Ordinance, Cap 115 and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme was served upon the Applicant by registered post indicating the TCAB’s intention to determine his appeal in his absence.  He was afforded seven days in which to provide a written explanation of his failure to attend.  He did not do so.  No other contact was made by the Applicant with the Board.  The Applicant has not sought to indicate an answer to that in his grounds of review.  The Applicant bears a responsibility to reside where indicated in his recognisance. Proper notice was served upon that address.  There is nothing within the grounds of review which explains why the relevant documentation would not have reached the Applicant given that he clearly received the Notice of Decision dated 7 July 2017 sent to the same address.  There is no inalienable right to an oral hearing. Much will depend upon the particular circumstances of the claim and of the facts submitted.  The Adjudicator applied the procedural guidelines fairly and in dealing with the matter on the papers gave every benefit to the Applicant which could be afforded to him.  Nevertheless, his claim did not establish the level of risk required.

Conclusion

11.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 did everything within his power to do so to no avail but still considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case, which he failed to do; and enquired into that case appropriately despite that fact.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12.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 16^th day of March 2018.

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

Form CALL-1