Alam Mahtab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 366/2018

[2018] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 366 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 on 13 December 2013 and was arrested by the police on 7 February 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 9 February 2014.  He was released upon recognisance on 24 March 2014.  His NRF claim form was submitted on 29 September 2015.

2.The Applicant attended a screening interview on 19 November 2015.  The Director of Immigration (“the Director”) dismissed his claim on all applicable grounds (not including BOR 2) by Notice of Decision (“the Decision”) on 30 November 2015 and by Notice of Further Decision (re BOR2) on 12 June 2017.  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard his appeal on 2 September 2017 and considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 22 February 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 March 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 Kiddapore and is single.  He worked as a salesman between 1987 and 1997 and had his own garment business from 1997 to 2013.  He and his family are supporters of the Comunist Party of India (“CPIM”).  In 2012, the opposition party, the All India Trinamool Congress (“TMC”) became the ruling party.  There was friction between the supporters of the two parties.  In 2008, the Applicant suspected that members of TMC had killed his brother but the police and coroner’s investigations found it to be an accident.  In 2011 and 2012, the friction between the parties continued and at one point a fight broke out between the two which was broken up by the police who attempted to negotiate a truce, with both sides being allowed to advertise their cause.  The Applicant did incur some injuries from this fight, which were the subject of medical treatment.  Later in 2012, the Applicant maintains that unknown assailants, believed to be TMC, shot at him but he was not harmed.  The Applicant reported the matter but no further action was taken.  The Applicant felt unsafe and moved away for a short period of time before returning home but still felt insecure.  He then became a wholesaler of garments and obtained a passport to assist him to travel.  In December 2013, he left India unhindered.  Although he had intended to come to Hong Kong purely for business purposes, he had been told by his mother that his home had been damaged by people who had threatened to kill him and so he had decided not to return.

The non-refoulement claim

5.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.

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.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in his home area at present.  Many of the documents related to other people and not directly to the Applicant.  The Director 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.  There was only once incident in which the Applicant received any injury and that appeared to be as a result of a fight between numerous supporters of two political parties, which the Applicant voluntarily took part in.  There is no evidence to show that the Applicant was specifically targeted as opposed to there being a general antipathy between supporters of TMC and CPIM.  The level of harm he received was low and his risk of future harm was equally low.  In so far as BOR 2 was concerned, the Applicant was sent a letter dated 24 May 2017 in which he was invited to make further representations.  He chose not to do so.

Decision of the Adjudicator

8.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.  It was clear this was local rivalry between two opposing political parties.  The Applicant was as responsible as other participants for the fight and for his injuries and it was no surprise that he was arrested.  There was no evidence to suggest his brother’s death was anything other than an accident.  Neither party is now in control of government.  These experiences did not meet a minimum level of severity nor were there substantial grounds for believing the Applicant would be subject to ill treatment if returned to India.  There is no suggestion on the evidence of any untoward state involvement in these matters.  Even if the facts had indicated such a risk of harm, the Adjudicator found that they were localised events and the Applicant could reasonably re-locate elsewhere in his home country.

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.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any 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.

Conclusion

11.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.

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 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