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

HCAL 951/2017

[2018] HKCFI 2213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 951 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 illegally by boat on 28 June 2014 from China and was arrested by the police on the same day.  He was transferred to the Immigration Department on 30 June 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 1 July 2014.  He was released upon recognisance on 1 August 2014.  His NRF claim form was submitted on 19 April 2016.

2.The Applicant attended a screening interview on 10 May 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 31 May 2016 and by Notice of Further Decision (re BOR 2) on 26 September 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 June 2016.  The adjudicator of the TCAB, Mr Hong Ka-ho (“the Adjudicator”), heard his appeal on 13 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 17 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Bangladeshi national.  He was born on 21 April 1987, in Kalir Chor.  He is single and was a farmer.  This claim arises out of a land dispute with the Miji family, starting in 2013.  At that time, the Miji family were verbally abusive to the Applicant and his father in an attempt to stop them farming the father’s land.  This harassment was reported to the police, who inspected the title deeds and confirmed that the Applicant’s father owned the land under dispute but the threats continued.  In late 2013, the Applicant’s family ceased farming the disputed land and it was taken over by the Miji family.  The Applicant’s family took no action over this as they feared for their lives.  They did not report the matter to the police as they had been led to believe that the police had been bribed by the Miji family.  The threats continued even after the Miji family had the land and the Applicant, in particular, was targeted.  In early 2014, the Applicant believes that the Miji family detonated three home-made bombs outside of his home.  No one was harmed but the Miji family claimed to have carried this out.  The Applicant therefore moved away from his home village.  After he had done so, the harassment against his family ceased.  However, since he has come to Hong Kong, it has recommenced.

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.  He explained the process to be adopted and the Applicant answered all questions.  The Adjudicator was critical of the change of story and lack of substantiation of his claim by any other means, even taking into account the difficulties the Applicant may face in so doing.  He found that the Applicant had not satisfied the burden of proof upon him under any head of claim.

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 grounds of review.  The Applicant 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 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.

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 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