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

HCAL 958/2017

[2018] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 958 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 legally on 21 November 2013 and was arrested by the police on 23 December 2013 for overstaying.  He was transferred to the Immigration Department on 24 December. He was released upon recognisance on 14 February 2014.  The Applicant finally submitted a non-refoulement (“NRF”) claim by way of written representation, which was acceptable to the Director of Immigration (“the Director”), on 10 December 2014.  His NRF claim form was submitted on 24 April 2017.

2.On 5 January 2015, the Applicant was convicted of wounding and received four months’ imprisonment.  He was discharged on 23 March 2015 and released upon recognisance once more on 13 April 2015.  On 19 October 2016, he was convicted of theft and received a fine. On 11 November 2016 and 19 December 2016, he received four months’ imprisonment for possession of dangerous drugs and AOABH.  On 8 March 2017, he was discharged from prison and transferred to the Immigration Department.

3.The Applicant attended a screening interview on 10 May 2017.  The Director of Immigration dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 16 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 29 May.  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 14 August 2017.  The Adjudicator considered his appeal on all applicable grounds and refused his appeal on 1 September 2017.

4.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.The Applicant is an Indian national.  He was born on 14 May 1988 in Madhaipur, West Bengal.  He is single and a Muslim.  The Applicant maintains that he received no formal education but worked for his father in the activities of the Congress Party of India (“the Congress party”) and latterly, in 2011 and 2012, he worked as a chicken salesman elsewhere in India.  He is not a member of the Congress party.

6.In 2009, the Congress party was in power in the Applicant’s constituency.  His father ran for local election as the Village Head and the opposition included the Communist Party of India (Marxist) (“CPIM”).  Tensions arose between the candidates and the Applicant’s family received death threats.  Harassment and abuse was directed at the Applicant’s father. In his NRF, the Applicant said that 10 to 12 members of CPIM came to the Applicant’s house to persuade him to join their party and when he refused, assaulted him and threatened to torture him.  In interview, the Applicant said that this incident concerned his father and it was his father they had sought to persuade to switch parties.  Nevertheless, the Applicant was assaulted and received cuts and bruises, for which he sought treatment in a local hospital but the doctor at the hospital refused him due to his political affiliation.  The Applicant says that he then reported the matter to the police but the police took no action.

7.In 2010, the same group of people returned to his home looking for the Applicant’s father, but instead chose to attack the Applicant with a meat cleaver, injuring his hand and his finger badly.  During the incident, the Applicant had retaliated with his own meat cleaver and had injured one of his assailants.  In fear for his life, the Applicant left home and eventually fled to Delhi but he did not seek medical assistance nor did he report the incident to the police.  Whilst in Delhi, the Applicant worked selling chickens until he was informed by a friend that members of CPIM were looking for him.  The Applicant therefore fled to Mumbai, where he worked for a year before going to Kolkata.  In September 2013, the Applicant came to Hong Kong but then returned to India after a week.  Having returned to Kolkata, the Applicant remained there for three months before returning to Hong Kong on 20 November 2013.

The non-refoulement claim

8.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.

9.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

10.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 by the Board.

Decision of the Adjudicator

11.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof and identified that in a case such as this, which is based upon bare assertions without evidence in support, much turns upon the credibility of the claim and its plausibility in the light of what is known about the area and the situation at the relevant time.  The Adjudicator went to great lengths to test the evidence and to analyse the COI.  She obtained a number of concessions from the Applicant which she detailed in her decision.  She found a significant number of inconsistencies in his evidence which she gave him an opportunity to explain.  She did not accept those explanations and she explained why.

Leave to apply for judicial review

12.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

13.This is an appeal against the Adjudicator alone.  There were no proper grounds of review.  The Applicant states the decision was unfair and unreasonable.  He has not complained of any specific 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.

Conclusion

14.Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  It is clear that the Adjudicator went into meticulous detail as to how and why she disbelieved the Applicant and he is aggrieved by this.  He was found out in his lies and he does not like it.  That does not make her decision either unreasonable or unfair.  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 her determination, which was open to her on the facts and eminently reasonable.

15.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