Case Document

100%Judiciary

HCAL 1655/2018

[2020] HKCFI 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1655 OF 2018

BETWEEN
	Akbaruddin	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 29 November 2012 having travelled to and from Hong Kong 20 times between 2011 and 2012. On this occasion he overstayed and was arrested by the police on 2 February 2013. The applicant submitted a non-refoulement claim by way of written representation on 11 March 2014. His non-refoulement claim form was submitted on 12 September 2017. He attended a screening interview on 16 October 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 30 October 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Dione Dimitriadis (“the Adjudicator”), heard his appeal on 18 May 2018. The Adjudicator considered his appeal on all applicable grounds and refused his appeal on 9 August 2018.

2.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 16 August 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

3.The applicant is an Indian national. He was born on 30 July 1984, in Kolkata. The applicant claims he has had no formal education of any kind but worked as a tailor between 2001 and 2004 and thereafter as a garment salesman between 2004 and 2010. Between 2010 and 2012, he was the owner of a mobile phone business. His claim is based upon his fear of his business partner Mr Vinod (“Vinod”). They went into business together in 2010. The applicant was to source the mobile phones in China and Hong Kong and Vinod was to be in charge of retail in India. Originally the applicant maintained that the partnership was on a 50/50 basis and was an oral agreement. Later he said that he retained 60 to 70% of the profit and that the capital outlay had been his and not Vinod’s. He had no idea of the retail outlets used by Vinod in India. For the first year, he experienced no difficulties. According to the Immigration Department, he travelled to Hong Kong 20 times between February 2011 and October 2012. However, according to the applicant, in 2011, Vinod owed him approximately 1,700,000 Rupees (HKD 195,000) and therefore the applicant stopped travelling to China and Hong Kong. Thereafter he chased Vinod for the money, which led to arguments and on one occasion Vinod slapped the applicant two to three times on the face and landed one punch. He did not require any treatment for this and was able to return to work the next day. He did not report the incident to the police. As the applicant feared that Vinod would use his connections as a supporter of the Trinamool Congress Party to harass him, the applicant fled to Hong Kong.

The non-refoulement claim

4.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.

5.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

6.The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator canvassed the basis of the applicant’s claim and his reasons for not being able to return to work elsewhere in India. She pointed out a significant number of inconsistencies between his current evidence and that given to the Director, for which the applicant had no satisfactory answer. She confirmed that he had received only minimal physical harm at the hands of Vinod and that he had no personal experience of police corruption or abuse. He had not put his mind to a civil suit against Vinod for the sums outstanding and had no means of supporting his suggestion that he had actually been in business with Vinod as the monies he had received had not been deposited into a bank account. The Adjudicator detailed the exchange between the applicant and the tribunal at some length and came to the conclusion that the applicant was not to be believed. She explained why that was. As a consequence, he failed to establish his claim under any head.

Leave to apply for judicial review

7.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the decision of the Adjudicator. It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by that body or person when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

8.There were no grounds of review. 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

9.Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have nevertheless 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 and in detail. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

10.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 26^th day of June 2020.

	(Marcus Wong)
	for Registrar, High Court

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.

Notes for the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.	Sent to the Applicant on 26 June 2020 Akbaruddin Applicant’s ref. no: Nil.	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 26 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9102/17/11/113/IN1713 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2284/17 (formerly RBCZ 3000295/14)