Chetry Arjun v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 439/2019

[2022] HKCFI 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 439 OF 2019

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 illegally by boat on 27 October 2015, having attempted twice previously to enter Hong Kong but refused entry.  He was arrested by the police on 28 October 2015 and was transferred to the Immigration Department on 30 September 2015.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 1 November 2015.  He was released upon recognisance on 22 November 2015.  On 1 June 2017, the applicant was notified of his claim being considered under the USM[1]. His NRF claim form was dated on 20 July 2017.

2.The applicant attended a screening interview on 7 August 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 9 August 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Ian Candy (“the Adjudicator”), heard his appeal on 10 September 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 16 January 2019.

3.The applicant filed 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 and a Hindu.  He was born on 7 September 1983, in Gormara, India. He received education up to Form 10.  Between 1997 and 2015, he was self-employed trading in garments and electronic products.  The applicant claims that he is at risk of harm from members of his home village and, in particular, a man named Karki Rabilal, whose daughter he refused to marry in 2003.  This refusal was denounced by the village committee and an argument took place in which the applicant was assaulted.  The applicant ran away and reported the matter to the police, who declined to register the complaint.  From there the applicant went to Kathmandu, where he stayed for several years.  It was in Kathmandu that the applicant met his Chinese wife who is a Christian.  They were married in Kathmandu in 2012. That marriage was not registered in Kathmandu.  He registered the marriage in Hong Kong in 2016 shortly after arriving here.  As a result of his marriage in 2012, he was informed that the village committee in Gomara had refused to allow him to return for religious reasons.  He was also aware of the fact that Karki Rabilal also wished him ill and had made threats towards him. The applicant maintains that he was in fear of being killed by Karki Rabilal, the village committee and the villagers themselves should he return to Gomara.  He therefore obtained a passport and a Chinese visa.  He travelled to Guangzhou in August 2015 and attempted to enter Hong Kong to meet up with his wife but was refused entry.  The applicant therefore returned to India and tried again in October 2015 but was once more refused entry.  As a result, he sought to enter Hong Kong unlawfully by boat, which he succeeded in doing on 27 October 2015.

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 of the Adjudicator

7.The applicant seeks to review the decision of the Adjudicator. 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 provided the applicant with an opportunity to address him and to answer questions. Thereafter, he correctly set out the law and key legal principles including the burden and standard of proof.

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.  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 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 thatperson when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

9.There were no grounds of review other than the bare statement that it was unfair and unreasonable.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or specific 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 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, due to the seriousness of the issues at hand, I have considered the papers and grounds 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[2].  

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 9th day of March 2022.

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