Mahalingam Silambarasan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1038/2017 on BabelCite. This High Court CFI judgment was delivered on 12 April 2019.
1. The applicant entered Hong Kong lawfully on 23 December 2015 but was refused permission to land at Lok Ma Chau and was sent back to China. On 16 January 2016, he entered illegally by boat. He surrendered to the Immigration Department on the 18 January and submitted a non-refoulement (“NRF”) claim by way of written representation on 24 June 2016 some six months later. His NRF claim form was submitted on 23 November 2016.
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HCAL 1038/2017 [2019] HKCFI 329 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1038 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by The Honourable Mrs. Justice Campbell-Moffat:
Observations for the Applicant: Procedural history 1.The applicant entered Hong Kong lawfully on 23 December 2015 but was refused permission to land at Lok Ma Chau and was sent back to China. On 16 January 2016, he entered illegally by boat. He surrendered to the Immigration Department on the 18 January and submitted a non-refoulement (“NRF”) claim by way of written representation on 24 June 2016 some six months later. His NRF claim form was submitted on 23 November 2016. 2.The applicant attended a screening interview on 18 April 2017. The Director of Immigration (“the Director”) dismissed his claim by Notice of Decision (“the Decision”) on 29 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Paul Stephen Fisher (“the Adjudicator”), heard his appeal on 1 November 2017. He considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 4 December 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 2 June 1991, in Tamil Nadu. He received 13 years of formal education obtaining a bachelor’s degree in Commercial and Bank Management. Between 2011 and 2015, he worked as a marketing executive and money collector, operating his own business, although later he maintains that he resigned his position in a bank in order to travel to China. The applicant’s claim arises from a dispute over land belonging to his father. In 2015, members of AIADMK sought to erect a stage on the land for a political rally. As the applicant and his family belonged to a different party, they objected and eventually a large group of supporters from both parties entered into an argument, and later a fight, which had to be broken up by the police. During that fight, the applicant came to the defence of his father who was being attacked by a man called Ravikumar. In so doing, he assaulted Ravikumar in return. A week later, Ravikumar and his associates set upon the applicant resulting in cuts to his knee, wrist and neck which were bandaged in a local hospital. The week after that, the applicants and his friends were assaulted by Ravikumar and his friends once more and therefore he decided to report both incidents to the police who successfully managed to mediate between the two groups. Ravikumar agreed not to harm the applicant further but that did not stop the assaults. In a cricket match on the very next day, there was a dispute between the two teams and the opposition called upon some of Ravikumar’s associates, who came to the cricket pitch and once more attacked both the applicant and his friends with the cricket stumps. The applicant managed to escape the assault and does not mention receiving any injury. Ravikumar denied any responsibility for the attack. In any event, the applicant resigned from his job the next day and left his village a few days later to go to Chennai. In Chennai, he stayed with his younger brother and a number of fellow villagers, two of whom were the attackers from the cricket match. They did not attack him further in the boarding house but one evening, when the applicant was out with his brother, they attacked him at a restaurant for five minutes before a crowd gathered. They told him he would not be spared simply by leaving his village. He does not mention any injury and says that he did not report the matter to the police in Chennai but he returned home the same night. Once home, the applicant received a call from one of his recent attackers threatening him and suggesting he leave India, which he did by obtaining a job in China. In the intervening three months between deciding to leave India and arriving in China, the applicant remained in his home village and nothing happened to him. When he reached China, without his knowledge, he was smuggled into Hong Kong. On arrival he was told to say that he was sightseeing. He was refused permission to land and returned to China but overstayed his visa and so came to Hong Kong by boat for fear of arrest and imprisonment in China. He maintains that he was trafficked into 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:
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 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 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 explained the procedure to be adopted and asked questions which the applicant answered. In applying the factual case, as he found it to be, he correctly set out the law and key legal principles including the burden and standard of proof. He noted that the dispute was triggered by a dispute over land which was owned by the applicant’s father. This was clearly a private dispute. He also noted a number of inconsistencies in the documents including a letter from the applicant’s solicitor’s which suggested the applicant had been duped by the offer of employment in Hong Kong, which was not the applicant’s case before the Director. Indeed, in subsequent correspondence, it was claimed that the applicant sought to report this to the police which would have significant repercussions in India as those involved in India were of significant influence and therefore state protection would not be available to him. He also noted that the applicant, upon arrest, had said that he had sneaked into Hong Kong because of fear of being killed by Ravikumar, again, which was not what he said to the Director as to how he came to be in Hong Kong. 8.In the hearing before the Adjudicator, the applicant added that his parents continued to be harassed by Ravikumar over debts and the land but had not been harmed in any way although they had been threatened. There had been no trouble with AIADMK. He does not believe he could relocate elsewhere because of language problems and he wished to submit further documentation which would show his father owned the land and that loans had been taken out by his father to send him away. He said he believes people are waiting to murder him if he returns to India. It was an extensive interview in which the Adjudicator obtained a considerable number of additional facts which expanded upon and sometimes contradicted the applicant’s original case. However, the Adjudicator did accept that there had been an initial dispute between Ravikumar and the applicant’s father in which the applicant had intervened. He was less convinced of the varying evidence in respect of the family finances and the debts allegedly owed, which appear to be causing the current problems with Ravikumar. However, the Adjudicator did accept the broad basis of the applicant’s claim and assessed that claim against the relevant standards but found it wanting. 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 Decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator 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 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 especially the extensive review of the case by the Adjudicator. 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. Whilst there was some criticism of the evidence before him, the Adjudicator accepted the broad basis of his claim and assessed it at its highest. There is no criticism of the Adjudicator’s 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 the 12th day of April 2019.
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
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