Bhopinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL624/2017

[2018] HKCFI 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 624 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:

Application to apply for extension of time be allowed.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong on 14 March 2009 from Thailand and was permitted to remain until 28 March 2009.  He was arrested on 13 April for overstaying.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 15 April 2009 and released on recognisance on 22 April 2009.  His NRF claim form was submitted on 31 July 2014 with the assistance of the Duty Lawyer Service.

2.The Applicant attended three screening interviews on 26 November 2014, 29 January and 28 April 2015.  Some of the delay was to give time to the Applicant to submit documents which he suggested he wished to do.  They were not forthcoming.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 May 2015 and by Notice of Further Decision (re BOR 2) on 10 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Yung Yiu-wing, heard him on 18 May 2017.  The Adjudicator refused his appeal on 31 May 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017, which is outside of the three-month time limit.  However I note that the form was originally signed on 25 August 2017 and therefore extend time for service of the Form 86 to 15 September 2017.  The Applicant did not request an oral hearing.   The matter was therefore considered on the papers.

Background

4.The Applicant is an Indian national born in Bauli Inderjit, Batala, Punjab, India.  He is married with two sons, one of whom is now in Canada.  He is a supporter of the Shiromani Akali Dal party (“SAD”) but only in so far as he voted SAD.  He was not an active party member. Between 1999 and 2002 he worked abroad in the United Arab Emirates as a labourer.  Thereafter, he worked as a diesel mechanic in Kashmir and returned home after the death of his father in 2007.  In August 2008, the Applicant had a dispute with another villager over the use of an agricultural water pump situated between their two pieces of land, which resulted in him knocking out that villager with a farm tool.  That villager was a member of the Indian National Congress party.  He was arrested by the police for unlawful wounding and during his detention he says he was interrogated, tortured and beaten.  His evidence before the Director on the nature of his torture and ill treatment was the subject of considerable criticism by the Director at paras 6.15‑6.27 of his Decision, and was not believed.  He escaped to Delhi by bribing a police officer and is a wanted person.  He remained in a hotel in Delhi for two weeks whilst he obtained a Malaysian visa.  On 23 August 2008 he travelled to Malaysia on his own passport.  He overstayed in that country and was eventually prosecuted for forgery and repatriated to Delhi on 20 December 2008.  He did not return home but met up with his wife and children and travelled to Amritsar and Shiri Nagar.  He then obtained a visa to visit Thailand and left once more on 30 December 2008.  He came to Hong Kong from Thailand on 14 April 2009 and filed his application for non-refoulement protection on 15 April 2009.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds 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”).

6.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.  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 which he fears.

Decision and further decision of the Director

7.The Director analysed the Applicant’s claim on all applicable grounds after three separate interviews as outlined above.  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, which he did to a limited extent albeit not always to his advantage as his case shifted more than once.  In coming to his decision to reject his claim under the various heads, the Director acted reasonably, took the Applicant’s case at its highest and explained his decision on the merits in a detailed, clear and intelligible manner.

Decision of the Adjudicator

8.The Adjudicator also 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 gave the Applicant the benefit of the doubt despite noting that his evidence before the tribunal was neither credible nor logical and was at times inconsistent with his previous testimony before the Director.  The Adjudicator made an equally detailed assessment of the facts relied upon by the Applicant and gave full reasons for his view of the veracity of those facts.

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 Decisions of the Director 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

10.There were no grounds of review. In order to exercise upmost fairness, I therefore considered the papers to assess whether there had been any suggestion of unlawfulness, unreasonableness or unfairness which could found a basis of an application for judicial review such that the Applicant should be asked to submit grounds or appear in person to make submissions even though the burden is clearly upon him to do so at the outset.

11.The Director and adjudicator were meticulous in their approach to the facts as relied upon by the Applicant.  They found those facts wholly incredible but nevertheless went on to assess whether the Applicant had reached the low standard of proof required of him under the various heads of claim and came to the conclusion that he had not done so.

Conclusion

12.I have considered the papers, grounds and submissions 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 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 their determinations, which were open to them on the facts and eminently reasonable.

13.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 13^th day of April 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