Satish Kumar and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 884/2017

[2018] HKCFI 2148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 884 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 Applicants entered Hong Kong legally on 25 April 2015 from India and surrendered to the Immigration Department on 11 May 2015.  They submitted their non-refoulement (“NRF”) claims by way of written representation on 27 May and were released upon recognisance on 9 June.  Their NRF claim forms were submitted on 8 September 2015.

2.The Applicants attended a screening interview on 27 November 2015, at which time the children were heard through their parents.  The Director of Immigration (“the Director”) dismissed their claims (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 December 2015 and by Notice of Further Decision (re BOR 2) on 22 November 2016.  They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard them on 28 November 2016.  The Adjudicator considered their appeal on all applicable grounds including BOR 2 but refused their appeal on 16 August 2017.

3.The Applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicants are Indian nationals.  They come from Salempur Masandan in the Punjab.  The family is Hindu and of the Chamar caste.  The 1^st Applicant is a plumber and worked in India between 1997 and 2014 and thereafter he worked in Dubai from September 2014 to January 2015.  The Applicants’ claim arises out of the purchase of a property from one of three Bikram brothers in 2012, which they believed was wholly owned by him and that he had sufficient title to pass to them.  However, it came to pass that there was a claim upon the property by the other two Bikram brothers, who lived in the United Kingdom.  Upon their return to India in 2014, the brothers spoke to the 1^st and 2^nd Applicants and explained their title to the property and that they wished the Applicants to leave.  This dispute was taken to local arbitration in which the “Sarpanch” directed repayment of the purchase monies and renovation costs to the Applicants. The brothers were not willing to repay the latter.

5.On the same day as the hearing, the Applicants allege that the power line to their house was cut.  Two weeks later, several people harassed the children of the family on their way to school, which included racial and religious abuse as well as threats to kill but no physical harm.  In March 2014, matters escalated and several men with weapons came to the family home and assaulted the family including the 3^rd Applicant and the eldest daughter.  As a result of a blow to the back of her head, the eldest daughter required surgery but did not survive.  The 1^st and 2^nd Applicants did consider reporting the incident to the police but on attendance at the police station, they observed their attackers to be present and decided not to take the matter further for fear of retaliation.

6.The two Bikram brothers returned to England shortly after the death of the eldest daughter of the 1^st and 2^nd Applicants but the Applicants continued to be harassed by others.  That harassment consisted of banging on their door at night, verbal abuse and demands to vacate the property.  None of these threats were reported to the police.  In May 2014, a group of people returned to the house armed with weapons.  They damaged the 1^st Applicant’s motorbike and threatened to kill the children although no physical attack took place and the family was unharmed.  The Applicants say this happened on a twice monthly basis but was not reported to the police.  In September 2014, the 1^st Applicant went to work in Dubai in the belief that he was the actual target of the perpetrators.  He was unable to return until January 2015, but in the intervening period, his family were still the object of verbal abuse although no physical harm came to them.  As the harassment continued upon the return of the 1^st Applicant to India in January 2015, the Applicants decided to leave India and come to Hong Kong, which they did on 24 April 2015, in the knowledge that they would be helped by members of the local Hindu temple upon arrival.

The non-refoulement claim

7.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 Applicants must establish he has substantial grounds for believing they will be subjected to torture if returned to their 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 Applicants 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 Applicants 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 Applicants must establish a real risk that they will be arbitrarily deprived of their lives, have the death penalty imposed upon them; or be the victims of genocide or otherwise be deprived of his rights under BOR 2.

8.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicants had established the factual basis of their claim.  The Director and Adjudicator must then assess the level of harm the Applicants say they fear.  Each ground of claim above has a relevant level of risk.  It is for the Applicants to establish that they are the subject of such risk.  Under the HKBORO, they must show substantial grounds for believing that the harm which they fear 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 they fear.

Decision and further decision of the Director

9.The Director analysed the Applicants’ claim on all applicable grounds.  The Applicants did not submit any documentation in support of their claim other than a family photograph of their eldest daughter.  Nevertheless, the Director considered a range of documentary evidence as to the general situation in India at that time.  He correctly set out the law, key legal principles and made reference to relevant materials. The Applicants were given every opportunity to state their case and to supplement the evidence before the Director.  In coming to his decision to reject their claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicants were served a notice by way of a letter dated 4 November 2016, in which they were informed of their right to claim under BOR 2 and their right to make further submissions as to such claim.  They declined to do so.

Decision of the Adjudicator

10.The Adjudicator analysed the Applicants’ claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  The 1^st and 2^nd Applicants attended and spoke on behalf of their children.  They had the assistance of an interpreter.  They had no further evidence to add to their original claim but answered those questions put to them by the Adjudicator.  He correctly set out the law and key legal principles including the burden and standard of proof.  He concluded that the facts relied upon, did not found a claim for persecution for a convention reason; amount to ill-treatment under BOR 3; torture under section 37U or violation of their rights under BOR 2.  It was clearly a private property matter.  There was no suggestion of any involvement by the state or government.  Indeed, the protagonists had wished the family to vacate the property, which they had now done and therefore the issue had, in their eyes, resolved itself satisfactorily.  As the Applicants had failed to provide any documentary support for the suggestion that the eldest daughter had died as a result of the attack, they were disbelieved upon this point.  The Adjudicator also did not believe that the 1^st Applicant would voluntarily leave his family undefended in India and travel to Dubai for five months after an incident which involved an assault on the whole family by several people with weapons and in which his eldest daughter died and his son had also been injured.  Taken at its highest however, internal relocation would have been a viable option in any event.

Leave to apply for judicial review

11.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

12.There were no grounds of review.  The Applicant parents want their children to finish their education in Hong Kong.  They have not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicants have a duty to state the grounds of their 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

13.Despite the fact that the Applicant have not submitted 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.  Quite the opposite.  Despite the onus being upon the Applicants, the Director and Adjudicator engaged in a joint endeavour with the Applicants and considered all relevant criteria; gave the Applicants a reasonable opportunity to state their 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.

14.In my judgement, there is no reasonably arguable basis upon which the Applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.  I therefore refuse leave for judicial review.

Dated 29^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