Case Document

100%Judiciary

HCAL 436/2019

[2022] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 436 OF 2019

BETWEEN

	Waseem Khan	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 attempted to enter Hong Kong legally from Macau on 27 June 2015 but was refused twice on the same day. The applicant therefore submitted a non-refoulement (“NRF”) claim by way of written representation on 28 June 2015. His NRF claim form was submitted on 13 August 2015.

2.The applicant attended a screening interview on 26 August 2015 and 1 September 2015. 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 24 September 2015 and by Notice of Further Decision (re BOR 2) on 14 February 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 30 November 2015. The Adjudicator considered his appeal on all applicable grounds save for BOR 2 and refused his appeal on 8 August 2015. Thereafter the applicant sought to appeal the Further Decision of the Director but was out of time. The Adjudicator considered an application for extension of time but rejected it on 24 January 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019 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 30 December 1990 and is 31 years of age at the time of writing. He comes from the Rajasthan area of India and lived with his parents. He had 14 years of formal education and obtained a mechanical engineering qualification in 2011. He worked in mechanical engineering thereafter. In 2012, he became a supporter and member of the youth wing of the Indian Congress Party (“ICP”), eventually becoming the village president of the youth wing. In 2015, the applicant ran as an independent in local elections for the village head (he would have been 25 at the time) which covered some six villages and around 2,500 voters. He had wished to run on the ICP ticket but had been refused as being too young and with insufficient support. As an independent candidate, the applicant was also at loggerheads with the BJP candidate as some of his BJP supporters had joined the applicant. Pressure was placed upon the applicant’s supporters to have him withdraw. At some stage whilst various groups were campaigning, there was a clash between the applicant’s supporters and those of the BJP. The applicant was unharmed and both sides suffered some minor injury. Both sides made a complaint to the police. Some of the applicant’s supporters were detained for questioning but later released although they complained that they had been assaulted by the police whilst in custody.

5.There was friction between all parties running up to and during the election. The ICP won and the BJP candidate sought revenge from the applicant for taking his voters away from him. There were several altercations, with and without weapons, but only minor injuries were sustained, although requiring hospitalisation for tissue injury. The applicant maintains that the BJP stopped a police report being made although he did not go to the police station himself. After this incident, the applicant was further assaulted, this time with sticks and iron rods and a gun was pointed at him. He was told he would be killed unless he left the area. He remained in hiding at home initially and then went to Jaipur and from there to Ajmer. He understood that the BJP were still looking for revenge during this period of time. According to the applicant, whilst riding his motorbike in Ajmer, he believes BJP members hit him with a van causing him to be hospitalised with injuries to his head and leg. After discharge from hospital the applicant arranged to travel via Thailand to Macau wishing to come to Hong Kong.

The non-refoulement claim

6.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.

7.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

8.The applicant seeks to review the Further Decision of the Director dated 14 February 2017. As the applicant has already utilised the channel of appealing the Director’s Decision and Further Decision to the TCAB and the TCAB treated the appeal as a rehearing, neither the Decision nor the Further Decision of the Director is susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[1]. In this instance, the applicant sought to appeal the Further Decision in respect of BOR 2 to the TCAB but was out of time by some 18 days[2]. The Adjudicator took into consideration the requirements of s37ZT (2)(a) and (b) as well as the underlying merits of the substantive claim and rejected the application for late filing. It has therefore been dealt with.

Decision of the Adjudicator

9.Even though the applicant does not formerly seek to review the decisions of the Adjudicator dated 8 December 2015 and 24 January 2019, it was the underlying intention. This court will, in the interests of justice and fairness, give the benefit of the doubt to the applicant and will consider the papers before it in order to assess whether any grounds of review are available to the applicant. In doing so this court has noted that the Adjudicator analysed the applicant’s claim on all applicable grounds other than BOR2. 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. It is to be further noted that Ms Kwan went into the application for late filing under BOR2 extensively and provided detailed reasoning for the ruling she made including commenting upon the merits of the underlying claim. I cannot fault her reasoning.

Leave to apply for judicial review

10.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 Adjudicator of 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 properly 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 person when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review. The applicant seeks to address the Further Decision of the Director but the whole of the proceedings have been considered by the Adjudicator in any event and it should have been an application to seek to review her decision. This may have been a simple error on the part of the applicant and he has been given the benefit of the doubt by both the Adjudicator and by the undersigned. Nevertheless, the applicant 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: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I, like the Adjudicator, have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave, as did she when considering the application to extend time.

Conclusion

12.Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds very 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. Quite the opposite. 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. As a consequence of her diligence, she was well able to consider the BOR appeal out of time with equal fairness and acuity. There is no criticism of her determination, which was open to her on the facts and eminently reasonable[3].

13.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 9th day of March 2022.

	(Trista 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/s 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 judgement 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 the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 09/03/2022 Waseem Khan 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 09/03/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2390/15/10/59/IN494 BOR 306/17/3/77/IN83 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1272/15 (formerly RBCZ 353/15) RBCZ 9001785/16 (formerly RBCZ 353/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)