Madbar Sohel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1103/2017

[2018] HKCFI 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1103 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 10 May 2014 from India and was arrested by the police on 30 May 2014 for overstaying.  He was transferred to the Immigration Department on 31 May 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 1 and 20 June 2014 and was released upon recognisance on 9 July 2014.  His NRF claim form was submitted on 11 January 2016.

2.The Applicant attended a screening interview on 27 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 May 2016 and by Notice of Further Decision (re BOR 2) on 29 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 7 June 2016 but the TCAB awaited the decision under BOR 2.  The Adjudicator of the TCAB, Ms Gina Towney, heard him on 25 September 2017.  The Adjudicator therefore considered his appeal on all applicable grounds and dismissed his appeal on 24 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 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 in Mamka, India on 2 June 1990 and is 28 years of age.  Between 2007 and 2014, he worked as a part time driver.  The applicant has no political affiliation.  He is a Sikh of the Lubana caste.  The Applicant became romantically involved with a lady who was a Hindu of the Rajput caste.  The relationship had been kept secret because of the difference in their religion and caste.  In April 2014, their relationship was discovered and his girlfriend was beaten by her parents.  Her father told the Applicant to end the relationship.  He has not seen his girlfriend since.  Subsequent to the meeting with her father, the Applicant was beaten up by other members of her family and threatened to kill him.  As a result of the attack, the Applicant fled to the home of his aunt but the girlfriend’s family discovered his whereabouts and assaulted him again.  Up to this point in time the Applicant received only minor injury and did not report the assaults to the police.

5.The Applicant moved once again, this time he moved a considerable distance from his home area, but was once again discovered and beaten by the same group but this time with baseball bats, however the Applicant managed to escape.  From this incident he had cuts to his eye and head which needed stitches.  Because of this last assault, the Applicant decided to come to Hong Kong, which he did on 10 May 2014.

The non-refoulement claim

6.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 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.

7.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

8.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation as to the general situation in India at present.  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.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner and in detail.  In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 by way of a letter dated 13 June 2017 and was invited to make submissions thereon.  He failed to do so.

Decision of the Adjudicator

9.The Adjudicator also analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  The Applicant confirmed he has no contact with his girlfriend at all and does not know the current situation despite his family and his girlfriend’s family living in the village which had approximately 800 inhabitants.  The applicant did explain that the girlfriend was due to be married in April 2018 and that it would be safe to return to India and his home village after this date.  It was nevertheless also clear that the Adjudicator was more than a little sceptical about the veracity of the Applicant in any event.  In the end, the Adjudicator did not believe the claim put forward by the Applicant in respect of his relationship or any of the ensuing assaults.

Leave to apply for judicial review

10.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

11.There was one ground of review, which was that both the Director and the Adjudicator had failed to consider the ground reality when coming to their respective Decisions.  The Applicant provided no other information or detail as to his complaint.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness or given examples as to what information the Director and adjudicator had failed to take into account.  The Applicant has a duty to state the grounds of his intended judicial review with sufficient specificity to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  He did not do so.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.Despite the fact that the Applicant did not submit any explanation for his single ground of review, I have considered the papers carefully.  I have not found any error of law or procedure.  In so far as the Adjudicator is concerned, she simply did not believe the Applicant.  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 the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria.  They gave the Applicant a reasonable opportunity to state his case, answer their concerns and enquired into that case appropriately using a significant amount of cultural documentation.  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 24^th day of August 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