Newar Dipak v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 75/2018

[2019] HKCFI 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 75 of 2018

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 lawfully on 22 February 2014 but thereafter overstayed and was arrested by the police on 20 May 2014.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 May 2014.  He was released upon recognisance on 21 June 2014.  His NRF claim form was submitted on 20 November 2015.

2.The applicant attended screening interviews on 22 December 2015 and 27 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 18 February 2016 and by Notice of Further Decision (re BOR 2) on 3 August 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 24 February 2016.  The adjudicator of the TCAB, Mr Kevin Anthony Browne (“the Adjudicator”), heard his appeal on 14 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 5 January 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 January 2018 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 1987, in Uparkhuti.  He is single, has 12 years of formal education and worked as a farmer between 2007 and 2013.  This claim arises out of an inter-familial dispute over land bequeathed by the applicant’s grandfather to his three sons.  The applicant’s father had received a larger piece of land.  His grandfather passed away in 1993 but nothing of any moment occurred until 2013 when the applicant’s father suggested a meeting with village elders to resolve the differences between himself and his brothers.  The elders decided to maintain the status quo.  This ended with a heated quarrel in which an uncle had sought to attack the applicant’s father and therefore the applicant interceded.  As a result, according to the applicant, the uncle had threatened the applicant and had said “from now on, you will be my target and I will kill you”.  The next day, the same uncle attempted to attack the applicant with a knife but the applicant escaped unhurt.  He told his father about the incident and his father arranged for him to leave and go to Lalru Mandi.  He initially said that he remained there without incident until February 2014 when four to five male relatives of his uncle, armed with wooden sticks, confronted the applicant whilst he slept and assaulted him, but his friend and others gathered to assist him and his assailants fled.  During the incident, the applicant received one blow to the shoulder and had some minor bleeding.  In interview with the Adjudicator, he said this incident occurred in December.  He did not report this incident to the police.  After that attack the applicant left India and 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 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 both 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

7.The applicant seeks to review the decisions of the Director and the Adjudicator.  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 to the applicant and his rights.  The applicant said he had nothing to add.  He confirmed that his family and six siblings still live in the family home and that his father still farms the land in question.  On analysis, the Adjudicator found the evidence of the applicant to be unreliable.  He did not accept that the attack at his friend’s house occurred and the applicant could not answer the discrepancies which were apparent upon the papers with regard to it.  

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 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 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 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.

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 the 24^th  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

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 April 2019

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3166/16/2/132/IN742

Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9002116/17 (formerly QA T/C 2019/15 RBCZ 1966/14)