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

HCAL 1034/2017

[2020] HKCFI 1083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1034 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:

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, purportedly as a member of a hockey team, and thereafter overstayed.  He submitted a non-refoulement claim by way of written representation on 23 February 2016.  His non-refoulement claim form was submitted on 7 June 2016.

2.The applicant attended a screening interview on 30 June 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 4 August 2016 and by Notice of Further Decision (re BOR 2) on 29 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 17 November 2017.  He considered his appeal on all applicable grounds including BOR 2 and refused it on 1 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 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 May 1986, in the Punjab.  Between 2009 and 2014, the applicant worked as a driver.  In September 2014, he was involved in a motor accident in which he believed the two passengers of the other vehicle had died.  As a result, he fled the scene and left the area, traveling to Jalandhar to stay with relatives.  In the ensuing few days, the relatives of the deceased came to the applicant’s home and threatened his family as they wished the applicant to give himself up to the police.  To avoid any trouble from those people, the applicant applied for a passport but did nothing until later in 2015, when he was told that his whereabouts were revealed to the families of the deceased.  At that stage he came to Hong Kong disguised as a member of a hockey team.

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 (“the 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 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 correctly set out the law and key legal principles including the burden and standard of proof.  Despite having denied before the Director that he had portrayed himself as a member of a hockey team in order to come to Hong Kong, the applicant stated that he was in fact a member of such a team on a legitimate tour of Hong Kong when questioned by the Adjudicator.  The Adjudicator accepted that version of events and found that he had not entered Hong Kong with the intention of seeking refugee status.  Indeed, under examination, he agreed that he had no such intention at the time of entry and had simply made a claim in order to stay longer.  He also accepted that he had lied in some of his answers and made up evidence.  The families had not threatened harm and had simply wanted him to report to the police.

Leave to apply for judicial review

8.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

9.In his affirmation in support of this application, the applicant maintains that the decision of the Adjudicator was unfair and unreasonable.  There were no grounds provided in support of that claim.  I note that the Form 86 was completed in the same hand as many which are submitted to this court with exactly the same claim.  This applicant 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 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

10.Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers and two general grounds carefully.  Given the admissions by the applicant as to how and why he came to Hong Kong as well as the reasons given for his claim, he clearly presented no proper basis for a claim under any head.  As to the manner in which he was dealt with, 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.

11.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 5^th day of June 2020.

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