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

HCAL 929/2017

[2018] HKCFI 2152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 929 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 from Macau on 2 November 2009, when he was refused entry.  He tried again on 16 November 2009, and submitted a non-refoulement (“NRF”) claim by way of written representation.  He was released upon recognisance on the same date. On 24 October 2013, he was sentenced to 15 months’ imprisonment for taking up employment and was discharged on 18 July 2014, whereupon he was detained at Castle Peak Bay Immigration Centre.  Thereafter, he was released upon recognisance on 31 July 2014.  His NRF claim form was submitted on 12 November 2014.

2.The Applicant attended a screening interview on 26 January 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 11 March 2015 and by Notice of Further Decision (re BOR 2) on 26 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Allan Wyeth (“the Adjudicator”), heard his appeal on 6 May 2016.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 13 October 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 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 1 April 1990 in Damulian, in the Punjab.  He is single, a Sikh and Ghumman.  He has previously worked as a farmer and as a bed maker.  This claim arises out of a land dispute between his father and uncle, which had previously been jointly farmed between them but which the Applicant and his family now wished to be subdivided.  The uncle refused and when the Applicant and his family went to farm the land, they were attacked by 10 people carrying wooden sticks but were able to escape before any harm was done to them although the attackers damaged their tractor.  Two days later, the Applicant’s uncle and some others came to his home and threatened to kill them if they returned to the land.  This incident was reported to the police, who spoke to the Applicant’s Uncle but did not arrest him.  A couple of days later, the uncle and two others came to the family home and attacked the Applicant with wooden sticks and damaged his home.  Later, the same day, the attackers returned, this time there were four to five of them and they attacked the whole family including the Applicant’s mother and sister.  The Applicant was unaware of what, if any, injuries his family received but he received internal injuries and bruising from the two attacks.

5.As a result of the first attack inside his home that day, the Applicant sought the help of a friend to flee.  After the second attack later that same day, the friend arrived and took him away.  He left without the remainder of his family and maintains that they also fled and he does not now know their whereabouts.  Since that day he has had no contact with them.  From June to October 2009, the Applicant stayed elsewhere in India until he left in October when he flew to Thailand and then Macau.

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 the 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 and Further Decision of the Director

8.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

9.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 explained the Applicant’s rights fully and re-iterated the benefit to the Applicant of providing explanations for materials which the Board felt clarification was needed.  The Applicant declined to give oral evidence. The Adjudicator therefore considered the appeal upon the papers before him.  He correctly set out the law and key legal principles including the burden and standard of proof.  There was no evidence available to him to answer the inconsistencies within the Applicant’s case and he found that case implausible and incapable of belief.  The Applicant did not therefore satisfy the burden placed upon him.

Leave to apply for judicial review

10.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

11.There were no grounds of review.  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

12.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.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13.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 4^th day of December 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