Bachitar Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 999/2017

[2018] HKCFI 2272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 999 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 12 February 2015 from India by air but was refused permission to land and was detained at Castle Peak Bay Immigration Centre.  He submitted a non-refoulement (“NRF”) claim by way of written representation on the same day.  His NRF claim form was submitted on 30 March 2015.

2.The Applicant attended a screening interview on 21 April 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 24 April 2015 and by Notice of Further Decision (re BOR 2) on 3 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Yu Cheuk-man (“the Adjudicator”), heard his appeal on 13 March 2017 and 18 September 2017.  He considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 4 October 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 December 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 4 May 1990 in Mattewal in the Punjab.  He was a supporter of the Indian National Congress (“INC”) and grew to be influential in his village.  In March 2014, the Applicant was approached by another influential member of the village (“Sulakhan”), who was a supporter of Shiroman Akali Dal (“SAD”) and who wanted to persuade the Applicant to join his party.  The Applicant refused and was verbally threatened by Sulakhan.  In October of the same year, some six months later, the Applicant had a private dispute with Sulakhan when he accidentally damaged Sulakhan’s crops.  Even though the Applicant offered to pay for the damage, he was assaulted by Sulakhan and his brother and received further threats.  The Applicant made a report to the police the next day but instead of entering a report, the Applicant believed that the police officer telephoned Sulakhan and, as a result, the Applicant was detained in the police station for two days.  He was released unconditionally but was not informed why he had been detained.  Although the Applicant had political connections of his own at this time, he did not seek any assistance from them as his party was not in power.  The following month, the Applicant was attacked by five to seven unknown men with wooden sticks on his way to his farmland.  This lasted two to three minutes and the Applicant sustained internal injuries which were treated in a local hospital with pain killers.  As a result of his earlier treatment at the hands of the police, the Applicant did not report this incident to them.  The Applicant fled to his uncle’s home in Ludhiana but was confronted by the some of the same men about a month later, although on this occasion he managed to escape unharmed.  As it was no longer safe in Ludhiana, the Applicant moved to Chandigarh where he remained for six weeks but was further verbally threatened in Chandigarh by an unknown male, who said that wherever he hid, he would be found and killed.  The Applicant reported this death threat to the police who did not believe him.  Thereafter, he was advised by a friend to come to Hong Kong, which he did on the strength of his own passport, but was refused entry.

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 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.  As with the Director, the Adjudicator did not find the level and severity of the pain suffered to satisfy the burden placed upon the Applicant.  The Applicant admitted that Sulakhan had sought to hurt him because of the incident over the crops.  He was not acting in any official capacity when he sought revenge for the damage to his crops, this was not an SAD matter but a private one.  Even if the police officer had contacted Sulakhan as suggested, this was a personal and private communication between Sulakhan and his friend and not an act of the police as an organ of the state.

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 seeks for a re-hearing of his appeal.  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

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 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