Sharma Hoshiar Chand v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 966/2017

[2020] HKCFI 1424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 966 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 25 October 2006 and thereafter overstayed.  He was arrested by the police on 18 February 2008 for overstaying.  He raised a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 13 March 2008 and was released upon recognisance on 26 March 2008. His questionnaire in support was submitted on 7 September 2011.  That torture claim was refused on 29 November 2011.  He did not appeal.  The applicant submitted a non‑refoulement claim by way of written representation on 26 May 2016.  His non‑refoulement supplementary claim form was submitted on 2 November 2016.

2.The applicant attended a screening interview on 30 November 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds save for torture by Notice of Decision (“the Decision”) on 23 December 2016 and by Notice of Further Decision (re BOR 2) on 26 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard his appeal on 24 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and torture but refused his appeal on 1 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 November 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 November 1962, in Bandous.  He is married with five children and formerly worked as a chef and latterly as a farmer.  This claim arises out of an inter-familial dispute over land.  The land had been owned by the applicant’s father but upon his death had been transferred by the applicant’s brother “Dev”, into Dev’s name but not into the names of his two brothers in equal shares.  The applicant resided with his mother upon another parcel of land but his brother sought to claim this land as well.  Dev had some influence in the local Bharatiya Janata Party, as did Dev’s brother-in-law “Lal”.  In 2003, there was an argument over the land in which Dev’s wife (Lal’s sister) was injured.  The applicant was also injured and required stitches to his finger.  The incident was not reported to the police.  A few days later, Lal returned and there was a fight in which both Lal and the applicant used sticks to attack each other.  The applicant received only minor injuries and did not report the matter.  Thereafter, according to the applicant, Lal continued to harass him.  He says that in 2005, both Dev and Lal attacked him with their bare hands and a rod.  He received some injuries as a result but he had them seen to locally.  In 2006, the applicant moved to Jalandhar and then to New Delhi to avoid Dev and Lal.  In the same year he came to Hong Kong, leaving his wife and children behind.  He says that subsequent to arriving in Hong Kong the land dispute was resolved.

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, which at his discretion, included torture risk.  He arranged for an oral hearing and treated the appeal as a rehearing.  The applicant confirmed he had nothing to add to that which the Adjudicator already had before him save to say that his brother and Lal had both followed him to Jalandhar and New Delhi.  The Adjudicator found the applicant to be a poor witness.  He was unable to volunteer even minimal detail and was at times reluctant to provide further detail over and above that which was contained within the papers.  There were some significant inconsistencies which were unaccounted for including inter alia the issue over proof of his brother’s ownership of the land in dispute which the applicant accepted could easily have been confirmed with documentary proof and a suggestion that there was a dispute over other land owned outright by the applicant.  On each occasion, the applicant changed his story more than once when interrogated.  In his final analysis, the Adjudicator stated:

“...the Appellant’s claims amount to little more than a series of bald, frequently contradictory and sometimes incoherent assertions. While I would not have expected him to have provided a perfectly coherent account of events that he claims took place some years ago, it is reasonable to expect a broadly consistent account incorporating a reasonable level of detail. In my assessment, the Appellant failed substantially to meet this expectation. Having seen and heard his evidence I did not find him to be a credible witness.”

Accordingly, the Adjudicator found he had not established his claim to the requisite standard.

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.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

10.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.  For the reasons given above, he found the witness was not credible and had not established his case.  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 2^nd day of July 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