Dhaliwal Rupinderjeet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 968/2017

[2018] HKCFI 2266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 968 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 and overstayed.  He was arrested by the police on 18 January 2016 and was transferred to the Immigration Department the next day.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 20 January 2016 and was released upon recognisance on 25 February 2016.  His NRF claim form was submitted on 30 March 2016.

2.The Applicant attended a screening interview on 21 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2), by Notice of Decision (“the Decision”) on 12 July 2016 and by Notice of Further Decision (re BOR 2) on 7 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 25 July 2016.  The Adjudicator of the TCAB, Mr Adam Moore (“the Adjudicator”), heard his appeal on 28 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 5 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 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 17 December 1993 in Lopon, in the Punjab.  He is single, a Sikh and from the Jatt caste.  Having completed 12 years of public education, the Applicant qualified to be a plumber but between 2003 and 2015, he worked as a farmer on family land.  The Applicant’s claim arises out of a dispute over that land.

5.According to the Applicant, a person called Harbans Singh (“Harbans”) had sought to take over the family land, which had been resisted.  In 2010, a well-known gangster (“Happy”) was murdered in the Applicant’s village and although a number of people were arrested and charged with his murder, in 2012, the Applicant was threatened by Harbans’ men that he would be framed for the murder.  Alternatively, he would not be arrested but would be killed because he was implicated in the murder.  All of these threats were made by telephone.  None of them were reported to the police.  Later in 2012, the Applicant was riding on a motor cycle when two masked men rode very close to him, although he managed to swerve and avoid them.  One of the men stared at him.  He was not harmed.  The Applicant believed they meant to kill him.  It was after these threats that the applicant went to study to be a plumber in Moga.  During this time, the Applicant says he stayed at different addresses for fear of being found by Harbans.  In 2014, the Applicant returned home having completed his course, and was attacked by three unknown men whilst on his motor bike.  The Applicant received a knife wound to the leg and was treated for the wound privately.  This incident was not reported to the police but the Applicant left home and eventually came to Hong Kong as part of a hockey tour on 1 October 2015 and then overstayed.

6.The Applicant believed he was the target of these threats, rather than his father who actually owned the land, because the land would be transferred to him and his brother at some point in the future.

The non-refoulement claim

7.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.

8.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 the 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

9.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

10.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 confirmed the truth of what had been previously said by him to the Director.  However, in his Notice of Appeal, the applicant had also informed the tribunal that his brother had now left Lopon because he had also been harassed and was in danger.  He indicated that Harbans and Happy had a political connection and that the incident was part of a gang war.  The Applicant gave oral testimony that he believed that Harbans wished to kill him in order to take over the family land and he submitted for the first time that Harbans had personally threatened to kill him.  He accepted that he could not identify the men who had caused the wound to his foot but had assumed they belonged to Harbans and this was the only time he was physically hurt.

11.The Adjudicator considered extensive documentation and specifically documentation in relation to the alleged murder.  He did not find the applicant to be “particularly credible”. He believed that some of the evidence had been fabricated and some was illogical or inconsistent.  Against that backdrop, but giving the Applicant the benefit of the doubt, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof and found that the Applicant had not satisfied the burden placed upon him to establish his claim under any head.

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.There were no actual grounds of review.  The Applicant really seeks a re-hearing of his appeal.  He believes the decision of the Adjudicator 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 for the purposes of considering whether to grant leave.

Conclusion

14.Despite the fact that the Applicant did not submit any explicit grounds of review, I have considered the papers and grounds, such as they are, 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.

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 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