Sk Nizamuddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1035/2017

[2018] HKCFI 2486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1035 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 6 December 2012, but was refused permission to land and was repatriated to India on 7 December 2012.  He arrived once more, legally, on 15 June 2014 but thereafter overstayed.  He surrendered to the police on 31 July 2014 (some 13 months later) and was transferred to the Immigration Department on the same day.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 August 2014.  He was released upon recognisance on 4 September 2014.  His NRF claim form was submitted on 15 February 2016.

2.The applicant attended a screening interview on 13 April 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 6 May 2016 and by Notice of Further Decision (re BOR 2) on 27 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 12 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 23 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 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 12 December 1990 in Kolkata and operated a garment shop between 2013 and 2014.  In order to do so, the applicant borrowed money from his uncle “Sallahuddin”.  The business did not fare well and the repayments were not made in full within the agreed period.  This caused a family row when Sallahuddin sought repayment.  Sallahuddin pushed the applicant’s father and the applicant retaliated by pushing Sallahuddin, but no more than that occurred.  Thereafter, the applicant was led to believe that Sallahuddin used supporters of a local political party to look for him although they appear to have been singularly unsuccessful.  Because he feared reprisal, the applicant left home and went to live with his aunt.  He fled to Hong Kong in June 2014.

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.  Consequently, this court will not consider the grounds of review advanced under this head.

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 applicable to the case at hand, including the burden and standard of proof.  The Adjudicator outlined the basis of claim and thereafter went straight to the issues before him and explained his reasoning upon those issues.

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.  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 eight grounds of review in respect of the decision of the Adjudicator.  They are very similar to the standard form grounds often submitted by claimants but have been presented differently.  These are summarised as:

i)  The Adjudicator misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish his claim under all heads that he was liable to the relevant risk in the future.

ii)  The Adjudicator failed to carry out sufficient up to date research, which was procedurally improper and unfair to the applicant.

iii)  The Adjudicator failed to take into account COI and therefore failed to place appropriate weight upon it, which was Wednesbury unreasonable.

iv)  The Adjudicator failed to consider whether there was a pattern of gross, flagrant or mass violation of human rights in India, which was Wednesbury unreasonable.

v)  The Adjudicator failed to consider whether state protection exists in India including whether the state had exercised due diligence or sufficient due diligence and was thereby irrational.

vi)  The Adjudicator took into account and placed weight upon irrelevant, incorrect or inaccurate considerations, which could not be reasonably inferred, which was both irrational and Wednesbury unreasonable.

vii)  There were failures at first instance by the duty lawyer.

viii)  The applicant had no legal representation on appeal, which was procedurally unfair.

11.The applicant has complained of procedural irregularity, unfairness, irrationality and Wednesbury unreasonableness but has not provided specific instances of such.  The applicant has a duty to state the grounds of his intended judicial review and show 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.

12.As to ground i), in which the applicant complains that the Adjudicator misdirected himself by finding that the applicant had to show previous torture in order establish substantial grounds for believing he would be the subject of the relevant harm under the various heads of claim in the future, the Adjudicator did no such thing.  He laid out the four elements of the claim and thereafter considered them individually.  At paragraph 15, he specifically states “Although the lack of Element 1 in the past does not mean no torture in the future, the evidence does not establish substantial grounds for showing a foreseeable and real risk”. In that he was correct.  In order to establish his fear of the relevant risk if refouled, there must be an evidential basis from which that fear of risk can be ascertained and the evidential basis relied upon by the applicant was weak in the extreme.  This ground of review is without merit.

13.As to grounds ii) and iii), which have a similar basis.  It is submitted by the applicant that the Adjudicator failed to consider relevant and up to date research, failed to do sufficient research and enquiry in respect of someone fitting the profile of the applicant.  There are no particulars provided for this submission but in any event I am satisfied that the Adjudicator fairly considered all relevant and up to date material in respect of the applicant’s claim.  These grounds are not arguable.

14.As to ground iv) the applicant submits that the Adjudicator should have considered whether there was a pattern of gross, flagrant or mass violation of human rights in India.  This would have been relevant if there had been any suggestion that the applicant’s claim fell to be considered under this head.  However, this was a private dispute between the applicant and his uncle in which the applicant defaulted on his debt, assaulted his uncle and then fled the country. This ground is totally without merit.

15.As to ground v), the applicant submits the Adjudicator should have considered the existence of state protection in both its standard and extended meaning.  Once again, this may have been relevant if this had not so clearly been a private dispute in which the applicant chose not to go to the police.  He does not make any complaint against the state or state agents and it is irrelevant to his claim.  This ground has no merit.

16.As to ground vi), the applicant complains that the Adjudicator took into consideration matters which were irrelevant, inaccurate or incorrect drawing inferences therefrom which were not reasonable.  This is a wide ranging complaint without substantive explanation.  This court cannot possibly assess what facts, if any, were taken into consideration wrongly under this head unless the applicant provides the basis for this complaint.  Having said that, the factual basis of the applicant’s claim was very simple.  The Adjudicator had clearly grasped those facts and analysed them at their highest.  There was no need for him to rehearse them within his explanation.  This ground is not arguable without more.

17.As to ground vii), it arises from the proceedings before the Director and is not a proper subject of judicial review.

18.As to ground viii), the applicant submits that he was treated unfairly by reason of the fact that he was not provided with legal representation before the Adjudicator.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants on their appeal if they are of the view there is merit in their case.  Their assessment is on a case-by-case basis.  As the applicant was absent, I am unable to ascertain if he did apply to the scheme for legal representation and, if they did refuse his application, on what grounds they refused it.  Nevertheless, what else could have been advanced on behalf of the applicant which he could not have done himself.  He is clearly an erudite man and the basis of his claim was limited.  He had suffered no harm at all and had taken part in only one incident arising out of a private debt.  His family had been left unharmed throughout and he had left the country at the first opportunity.  This ground is not reasonably arguable.

Conclusion

19.Despite the fact that the applicant did not substantiate any of his grounds of review, I have considered the papers and grounds 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 was reasonable.  

20.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 19^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