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

HCAL 352/2018

[2018] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 352 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 25 May 2013 and was arrested by the police on 29 June 2013, for overstaying and was subsequently imprisoned for four months.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 March 2014.  His NRF claim form was submitted on 19 January 2016.

2.The Applicant attended a screening interview on 2 February 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 16 February 2016 and by Notice of Further Decision (re BOR 2) on 2 August 2017.  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard his appeal on 13 September 2017 and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 12 January 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 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 and a supporter of the Indian National Congress (“INC”).  As such he was targeted by supporters of Shiromani Akali Dal (“SAD”), who were the ruling party in the Punjab.  In April/May 2012, the Applicant sought to protect a lady at his garment stall who was being harassed by a member of SAD (“the Man”).  That resulted in him being attacked by several SAD supporters.  The Applicant was stabbed and received a bleeding nose and mouth.  He lost consciousness and was conveyed to hospital where he received three to four stitches to his stomach and two to three stitches to a head wound.  The incident was reported and a statement taken but no investigation by the police took place.  Contemporaneous newspaper reports suggested that the Applicant was the protagonist, which he denies, but he was later arrested for assault in respect of the incident.  During his detention, the Applicant was not treated improperly.  The Applicant was bailed on the same day and required to report to the police on a regular basis over the next year.  During that period of time, the Applicant received threatening phone calls from the Man who at the same time sought to persuade the Applicant to join SAD.  This was reported to the police but was ignored by them.  During 2012 up to early 2013, the Applicant was subject to no further physical threats.  In April 2013, because of the telephone threats, the Applicant went to his sister’s home for three weeks and thereafter to New Delhi.  As he believed the Man was continuing to search for him, the Applicant left India for Thailand on 22 May 2013 and flew to Hong Kong on 25 May 2013.  He did not lodge his NRF until March 2014.

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 Applicant seeks to review the Decisions of both the Director and the Adjudicator.  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.

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 and applied them.  The Applicant adopted what he had said previously.  The Adjudicator engaged with the Applicant and discussed the situation in India and the first incident in particular in which he maintained that he had come to a woman’s aid but was later accused of both assaulting the woman and, in a separate incident of stabbing the Man.  He made no direct complaint against the police.  The Adjudicator found the evidence of the Applicant to be wholly unreliable with glaring contradictions.  Even taking his case at its highest, the Applicant had failed to satisfy the burden placed upon him under all heads.

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 Further Decision of the Director.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Director when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.There were limited grounds of review.  The Applicant maintains that he was unaware of the letter of 7 June 2017, from the Director in respect of BOR 2; that he had no legal representation or assistance with his BOR 2 claim and when he sought assistance, the staff of the Immigration Department were discourteous and unhelpful.  This is his only complaint.  I have already dealt with this at paragraph 6 above.  It is not now open to the Applicant to seek a review of the Decision of the Director.  He has not complained of any other procedural irregularity, unfairness or unreasonableness out with these narrow complaints against the Director.  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 proper ground for the purposes of considering whether to grant leave.

Conclusion

11.I have considered the papers and limited grounds carefully.  I have not found any error of law or procedure by the Adjudicator.  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 sought to engage the Applicant in a joint endeavour, considered all relevant criteria and enquired into that case appropriately.  At that time, the Applicant was given an opportunity to state his case under all heads and the Adjudicator satisfied himself of the relevant evidence for all heads of claim.  

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 20^th 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