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

HCAL 393/2018

[2018] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 393 of 2018

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 23 February 2008, extended that stay lawfully but then overstayed and surrendered to the Immigration Department on 7 April 2008.  He was released upon recognisance on 23 April 2008.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 June 2010.  His NRF claim form was submitted on 21 January 2015.

2.The Applicant attended screening interviews on 2 July and 29 October 2015, and then on 15 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 February 2016 and by Notice of Further Decision (re BOR 2) on 16 August 2017.  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard his appeal on 13 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 5 January 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 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 Varoke, in the Punjab on 10 December 1983.  He is now 35 years of age and single.  At the time he left India to come to Hong Kong, he was 23 years of age but had not worked in India at any stage as he had been incarcerated at the age of 19 and was on remand or imprisoned between 2004 and 2006.  Prior to that, he had been at school but failed to matriculate because he was in prison.

5.This incarceration arose out of a fight between friends of the Applicant outside of his school in 2002.  During the fight, a person called Ravvi was stabbed and killed.  The Applicant and his friends were implicated.  Ravvi’s family came to their village and set fire to their homes in order to find them and seek revenge.  No one was hurt but the Applicant fled to his aunt’s home in Jalandhar City which is some 12 to 15 hours away from his village.  The incident in the village and the criminal damage were not reported to the police.  Shortly after his arrival in Jalandhar City, the aunt and his cousin were also attacked by a group of men believed to have been sent by Ravvi’s family.  As a result, the Applicant ran away to New Delhi and then to several other places in India, staying with friends each time.  He moved about in this way for about two years.  Ultimately, he decided to surrender himself.  When he did so, he was beaten so badly by the police that he lost consciousness.  The beating resulted in a broken ankle and fractured arm.  The Applicant also maintains he was sexually abused at that time.  He received no medical attention for his injuries.  In this condition, the Applicant signed blank forms placed before him in the police station and later signed documents given to him in court because of the threats he received from the police.  When in court, the Applicant had representation but made no complaint to either his lawyer or the judge, as a result of the threats made by the police.  He was remanded thereafter for about a year and received regular visits from family. In May 2005, the Applicant was sentenced to seven years’ imprisonment for causing grievous bodily harm.  In late 2007, the Applicant says he obtained bail pending appeal because his sentence had been suspended pending appeal but instead of waiting for due process, he fled to Hong Kong by crossing the border with Nepal and then using his Indian Passport in Nepal to fly to Hong Kong.

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 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.  The applicant had the benefit of an interpreter.  The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof.  He explained the procedure, asked questions of the Applicant and asked the Applicant if he wished to add anything to his submissions.  He studied the documents supplied by the Applicant in some depth, which inevitably threw up some inconsistencies. This was put down to his lawyer or lapse of time, by the Applicant.  In particular, the Adjudicator also noticed a substantial gap in the account of the Applicant, which suggested that the Applicant had, in fact, been released a year earlier than he suggested in which time he had obtained a passport.  He had used that passport to enter Hong Kong lawfully in February 2008.

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 simply maintains the Decision was unfair and unreasonable.  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, explained everything to him and considered all relevant criteria.  They 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 2^nd 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