Govindan Devandran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL690/2017

[2018] HKCFI 1075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 690 of 2017

BETWEEN

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

1.The Applicant entered Hong Kong legally on 24 October 2009 from India.  He overstayed from 11 November 2009, and was arrested by the police on 14 December 2009.  Thereafter, he was transferred to the Department of Immigration on 15 December and submitted a non-refoulement (“NRF”) claim by way of written representation on 16 December 2009.  He was released upon recognisance on 20 January 2010.  In 2010, he was arrested and prosecuted for breach of condition of stay and received a sentence of imprisonment of two months.  He was released upon recognisance once more on 8 January 2011.  His NRF claim form was submitted on 24 October 2014.

2.The Applicant attended screening interview on 9 February 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 10 March 2015 and by Notice of Further Decision (re BOR 2) on 29 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 17 March 2015.  The Adjudicator of the TCAB, Mr Yu Cheuk-man, heard him on 22 September 2016.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 11 August 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 September 2017, and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is an Indian national.  He was born on 10 May 1971, in Kulanthiranpattu, India.  He completed Form 8 and worked thereafter as a farmer.  He appears to be married with children who remain in India.  His farmland was surrounded by farmland owned by “S”.  In 2009, “S” offered to purchase his land at market value which the Applicant declined.  A dispute ensued in which “S” threatened the Applicant, which he reported to the police but did not register a First Incident Report.  Two days later, “S” yelled at the Applicant for making a report to the police.  At the time, he was with 10 and other people with ariwals and therefore the Applicant fled the scene and took a bus to Madras which is 300 km away from his home village.  His wife told him that the same people had been to their house and made threats to kill him.  She had left their home and gone to stay with her mother.  She urged him to leave the country and a friend suggested Hong Kong.

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”).  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 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 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

7.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials.  In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was provided the opportunity to make submissions to the Director under a letter dated 9 May 2017.  He did not do so.  Given the reasoning of the Decision, there was no basis for finding in favour of the Applicant under BOR2.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds despite having first heard the Applicant prior to the Further Decision.  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 had all available materials which he considered carefully.  As with the Director, he found absolutely no merit in the Applicant’s claim which evidence no physical harm or threat of harm and no attempt to resort to state agencies or to consider reasonable relocation.

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 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

10.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.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.

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 5^th day of July 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