Gurdev Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 955/2017

[2018] HKCFI 2207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 955 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 15 April 2008 and was arrested by the police on 6 May 2008 for overstaying.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 May 2008.  He was released upon recognisance on 23 May.  His NRF claim form was submitted on 30 December 2013 and a supplemental claim form was filed on 19 August 2014.

2.The Applicant attended a screening interview on 5 November 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 23 December 2014 and by Notice of Further Decision (re BOR 2) on 8 December 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Yu Cheuk-man (“the Adjudicator”), heard his appeal on 15 March 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 9 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 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 5 April 1985.  There is no record of his place of birth or his place of residence thereafter.  The Applicant underwent 12 years of formal education as well as a specialist computing course in India and between 2000 and 2008, he worked as a data entry clerk.  This claim appears to arise out of an inter-familial dispute over land between the Applicant’s father and his uncle.  The Applicant claims that an attempt was made by his uncle to electrocute him whilst he was in a bath, that his uncle threatened to kill him and that although he fled from his home, he was led to believe that his uncle continued to look for him.  The Applicant received no injuries at any stage and did not report the incidents to the police.

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.As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

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.  The Applicant had an opportunity to fortify his claim at this point and to make good his argument that the Director failed to understand the reality on the ground.  The facts relied upon by the Applicant, taken at their highest, came nowhere close to satisfying the relevant burden of proof placed upon the Applicant under any head.  There was no merit whatsoever in his claim but nevertheless the Adjudicator took it at its highest, considered the most up to date information about the availability of protection against future harm, if it was sought, and found that it was available.

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 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

10.There were no proper grounds of review.  The Applicant merely states that there was a failure to consider “the ground realities” by both the Director and Adjudicator.  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 show 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 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.  In particular, considerable effort was made to ensure that the most up to date COI was taken into consideration.  There is no criticism of his determination, which was open to him 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 1^st day of November 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