Case Document

100%Judiciary

HCAL 1123/2017

[2018] HKCFI 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1123 of 2017

BETWEEN

	Harjeet Pal	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 illegally on 2 August 2015, by boat from China and surrendered to the Immigration Department the next day. He was released upon recognisance on 7 September 2015. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 October 2015. On 7 December 2015, the Applicant was arrested for taking up employment whilst remaining in Hong Kong without the authority of the Director of Immigration (“the Director”). He was convicted on 12 December 2015 and received 15 months’ imprisonment. His NRF claim form was submitted on 6 July 2017 after his release.

2.The Applicant attended a screening interview on 25 July 2017. The Director dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 July 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Siu Chak-yu, heard him on 21 November 2017 and refused his appeal on 8 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 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 Telheri on 7 August 1986 and is 31 years of age. He is single; received 15 years of education and thereafter worked as a general worker in his home village and then Iraq. Between 2014 and 2015, he returned home to work and in January 2015, the Applicant purchased a piece of land for the purpose of constructing a shop. In April 2015, Mukhtar, who was the village chairman, asked to purchase the land. The Applicant refused. The next day, the Applicant was assaulted by Mukhtar’s brother, who was wielding an iron rod. In order to defend himself, the Applicant seized the rod and hit his assailant causing a fracture to his leg, whilst the Applicant suffered a head injury. On his return home, Mukhtar was present and therefore the Applicant ran away. He later discovered that Mukhtar had threatened to kill him if he returned. In the intervening two to three weeks, nothing of note occurred despite the Applicant returning home and visiting his construction site. However, on a visit to Pehowa City some weeks later, the Applicant ran into Mukhtar and his friends and was assaulted once again although he managed to escape unharmed. Whilst fleeing, he heard Mukhtar threaten to kill him. As a result, the Applicant fled India and went to China before illegally entering Hong Kong.

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 the 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. 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.

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. He considered both the internal and external consistency of the evidence before him. He found the Applicant evasive and unreliable and he explained in some detail why he found that to be the case, having given the Applicant every opportunity to address those concerns. In response, the Applicant maintained that he was under medication and did not know what he was talking about. The Adjudicator clearly did not believe him and did not find the attacks substantiated.

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 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.

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 12^th day of October 2018.

	(Ms Queenie Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12/10/2018 Harjeet Pal Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/10/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8153/17/8/191/IN1552 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1375/17 (formerly RBCZ/13911/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)