Ali Mukaddar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 279/2018

[2018] HKCFI 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 279 of 2018

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 legally from 20 August 2014 and was arrested by the police on 7 September 2014.  He was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 9 September 2014.  He was released upon recognisance on 29 September.  His NRF claim form was submitted on 5 June 2017.

2.The Applicant attended a screening interview on 23 June 2017.  The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds by Notice of Decision (“the Decision”) on 3 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 17 July 2017.  The adjudicator of the TCAB, Mr Christian Carney (“the Adjudicator”), heard his appeal on 11 December 2017 and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 9 February 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 February 2018 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 Ekbalpore, Kolkata.  He is married.  The Applicant operated a clothing business and in 2010, he sought a loan from a man named Saa. This loan was repayable over a two‑year period without interest. Unfortunately, the Applicant’s business started to fail in 2012 and he was unable to repay the remainder of the loan.  This lead to Saa demanding payment and making threats, including threats to kill.  No report was made to the police about these threats as the Applicant intended to repay him.

5.At about the same time, a person called AH was murdered by the Applicant’s brother‑in‑law.  The suspects were therefore connected to the Applicant through his wife’s family and he believed that he would also be accused of the murder.  Because of this, the Applicant moved elsewhere in India and was able to live safely in several areas until he left for Hong Kong in August 2014.  In the interim, he believed both Saa and the police were looking for him.  However, he did accept that he had not been charged or officially implicated in the murder.

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, which he did.  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.  Amongst other things, this was clearly a private matter in which the Applicant had never been the subject of violence and his family had remained untouched.  At its highest, the Applicant had received threats to kill.  His risk of harm if returned to India was therefore low.

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.  He canvassed all of the evidence with the Applicant, such that the Applicant will have rehearsed that which had been considered before the Director and would fully understand which facts were being considered on his appeal.  He accepted that for a period of 18 months prior to leaving India, he had returned to work in his local mall and yet had come to no harm.  He could not answer why he was able to find 26,000 rupees for a flight to Hong Kong which could have been used to repay his debt to Saa if Saa’s threats were the reason he had left home and his wife.  In answer to that, the Applicant said he had heard that the government of Hong Kong helps people and gives them a living allowance.

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 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 limited grounds of review.  The Applicant complains that he was unable to read the hearing bundle or the decision of the TCAB.  He has not been provided with any assistance from the Duty Lawyer Service (“the DLS”) in respect of his appeal.  The Applicant essentially asks for a re-hearing of his appeal.  He has not complained of any other specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12.The Applicant had the benefit of an interpreter and member of the DLS at his original screening interview on 23 June 2017, at which time he would have been able to seek advice form the DLS.  He must have done so as his appeal was submitted just two weeks later.  The Director of Legal Aid reviews all applications for legal aid on a case by case basis.  He was entitled to refuse legal aid to an applicant whose case he considered unmeritorious, which he did in this instance.  That should not have prejudiced the Applicant as matters had been fully canvassed just two weeks prior to his application and the Adjudicator explained to him the process before the hearing in December 2017.  The Applicant was provided with an opportunity to answer questions, add information, make submissions or complain, if he felt it necessary but he did not do so.  All of the relevant material was before the Adjudicator, who considered it properly.  The Applicant does not suggest that the Adjudicator acted inappropriately in any way nor has he pointed to any consideration that was unfair, irrational or unreasonable.  There are no merits in these grounds.

Conclusion

13.I have considered the papers and grounds carefully on behalf of the Applicant, who has complained that he is not in a position to know how to proceed with this application, being of limited educational background and foreign to Hong Kong.  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.

14.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 26^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