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

HCAL 946/2017

[2018] HKCFI 2215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 946 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 25 May 2013 and was arrested by the police on 8 January 2014 for overstaying.  He was transferred to the Immigration Department the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 January 2014.  He was released upon recognisance on 8 March 2014.  His NRF claim form was submitted on 25 October 2016.

2.The Applicant attended a screening interview on 11 November 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Simon Russell (“the Adjudicator”) heard his appeal on 28 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 6 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 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 14 September 1971 in Kolkata.  He is a Muslim.  The Applicant has received no formal education but has worked in Kidderpore and Dharmatala as a shoe and a cosmetic salesman eventually operating his own business in Kidderpore from 2008 to 2012.  Between March and February 2012 and 2013, the Applicant operated as a courier between Kolkata and Hong Kong carrying garments and electrical goods.  During the period of time when the Applicant operated his own business, he obtained a loan from Akhilish which ultimately could not be repaid as his business failed.  That prompted the Applicant to work as a courier.  The earnings from that work were intended to be used to repay the loan but Akhilish wanted to be repaid the capital sum in one go.  When the Applicant could not repay the loan, Akhilish resorted to harassing and threatening the Applicant and would do so with several other people in tow in order to pressurise and intimidate him.  As a result, the Applicant decided to flee to Hong Kong.

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 of the Adjudicator

7.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.  The Adjudicator accepted that the claim was simple and unembellished and probably true.  Whilst accepting that there was significant political upheaval in the relevant part of India, the Adjudicator did not find that the claim was derived from this issue nor that the Applicant failed to make any complaint because of Akhilish’s political influence.  In particular, the Adjudicator noted that the Applicant had travelled to Hong Kong on many occasions after his troubles with Akhilish arose but at no stage had he sought protection under the regime.  Indeed, he only did so after his arrest.

Leave to apply for judicial review

8.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

9.There were no grounds of review.  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

10.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.

11.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 7^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