Dhessi Ivinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 959/2017

[2018] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 959 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 1 October 2015 from New Delhi and was surrendered to the Immigration Department on 20 October 2015.  He was released upon recognisance on 20 November 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 12 February 2016.  His NRF claim form was submitted on 3 June 2016.

2.The Applicant attended a screening interview on 22 June 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 July 2016 and by Notice of Further Decision (re BOR 2) on 29 March 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr SJ Geiser (“the Adjudicator”), heard his appeal on 20 April 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 19 October 2017.

3.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

4.The Applicant is an Indian national.  He was born on 22 November 1984, in Jagraon in the Punjab.  He is single, had 10 years of formal education and worked as a farmer between 2003 and 2015.  His claim arises out of an inter-familial land dispute in which an uneven disposition of the family land had been granted upon the death of the Applicant’s grandfather.  As a result, the uncle sought redress through the courts and the disputed portion of the land remained unworked.  In 2013, the court ruled in favour of the Applicant’s father and farming upon the disputed land was resumed.  The uncle was aggrieved and sought to obtain the land by other means. In 2014, the Applicant maintains that his uncle and four to five others threatened the Applicant with bamboo sticks but did not harm him.  He took the matter to the village headman who told the family to resolve the dispute over the land amongst themselves.  In 2015, the Applicant was assaulted by a group of five to six unknown men who purported to be acting on behalf of his uncle.  One of those men beat the Applicant with a bamboo stick.  The Applicant sought medical attention for his bruises but did not report the matter to the police as he reported it to the village headman, who refused to become involved because the Applicant’s uncle was not a party to the assault.  Later in 2015, the Applicant was driven off the road by his uncle who was driving a tractor.  Whilst the Applicant received no injury as a result, his bicycle was badly damaged.  Assuming that he was being targeted, the Applicant fled from his home village to live with a relative for a short while but believed that his uncle was still looking for him and therefore came 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 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 procedure to be adopted and gave the Applicant every opportunity to make his case.  This was a private matter over which the Applicant received, at most, some bruising.  That assault could properly have been reported to the police but the Applicant did not do so.  His evidence was unconvincing.  At its highest, the Applicant’s claim failed to satisfy 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.This is an application for leave to review the decision of the TCAB. There were no proper grounds of review.  The Applicant states that the decision was “unfair”.  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 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, grounds and submissions carefully.  The application is in respect of the decision of the adjudicator only.  At that time, he chose, after advice from the Board, to say nothing further and relied solely upon the hearing bundle.  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, against whom he seeks judicial review, 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.  In particular, the Applicant chose to make no further representation to the Adjudicator despite being told that he could do so.  He answered questions put to him and did not avail himself of a closing submission.  He made no complaint before either tribunal that he considered the manner in which he had been treated to be unfair.

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 11^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