Panchanathan Ramu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 793/2017

[2018] HKCFI 1785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 793 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 29 December 2013 from India and   surrendered to the police on 15 January 2014, having overstayed.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 January 2014.  He was released upon recognisance on 4 March 2014.  A removal order was made against him on 25 February 2014. His NRF claim form was submitted on 24 August 2015 and was prepared with the assistance of the DLS and an interpreter.

2.The Applicant attended a screening interview on 26 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 23 May 2016, and by Notice of Further Decision (re BOR 2) on 8 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 June 2016.  The Adjudicator of the TCAB, Mr Adam Moore, heard him on 19 July 2017.  The Adjudicator refused his appeal on 27 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 October 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 July 1972 and lived in Tamil Nadu.  He received 10 years of formal education and worked for 6 years as a farmer and latterly as a driver.  He is married with three children.  The Applicant’s claim arises out of his membership of Dravida Munnetra Kazhagam (“DMK”), which he joined at the age of 18, and which is in opposition to the All India Anna Dravida Munnetra Kazhagam (“AIADMK”), which is the ruling party in Tamil Nadu.  He alleges that in April 2013 (at the age of 40), he and others went to the official offices of AIADMK to complain about DMK posters, which had been damaged by AIADMK members.  Not surprisingly, a row ensued and a scuffle broke out.  The Applicant and his friends complained to the local police about the damage to their posters but the police wished to resolve the issue by talking with AIADMK.  A week later, the Applicant was attacked by two unknown people carrying aruvals and received injury to his head and back which required two stitches.  The Applicant assumed them to be AIADMK members.

5.As a result of the attack, the Applicant went into hiding and was later informed by his wife that she had received threats to his life and to the whole family.  She and the family therefore also went into hiding but not with the Applicant.  The Applicant later moved to Chennai, some 370 km away, when he learnt that members of AIADMK were looking for him in his original hiding place and then on to Karaikkal, because he believed that he had been tracked down in Chennai.  That did not last long and the Applicant, believing he had once more been traced, returned to Chennai.  It was at this point that he decided to come to Hong Kong.  He left India on 9 August 2013 and came to Hong Kong but returned on 28 August 2013.  During that visit, the Applicant did not lodge any claim.  He returned to Hong Kong once more on 29 December 2013 and over stayed and then sought to raise a non refoulement claim.  The Applicant had no difficulty leaving or re-entering India.

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.  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.  He found the risk of harm to the Applicant to be low and his return to India in 2013 was inconsistent with his fear for his own life or that he would be harmed.  In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon.  He failed to do so.

Decision of the Adjudicator

9.The Adjudicator 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.  The Applicant appeared unrepresented but with the assistance of a Tamil interpreter.  The Adjudicator accepted that the applicant was a member of the DMK but a low level supporter and with no higher profile.  He accepted the first incident in respect of damage to a flag (rather than posters) but was less satisfied about the second incident in which the Applicant had been injured as his version of events had altered in material respects.  The Adjudicator found this to be a private traffic related incident without connection to AIADMK.  The remainder of the Applicant’s claims were based upon hearsay and, in any event, he came to no harm.  The Adjudicator adopted the view of the Director as to the Applicant’s return to India after first coming to Hong Kong and found his reasons for not claiming protection at that stage insincere and self-serving.

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 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

12.Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers 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 the 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 14^th day of September 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