Case Document

100%Judiciary

HCAL 560/2019

[2022] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 560 OF 2019

BETWEEN

	Samuel	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 lawfully on 27 July 2015 and submitted a non-refoulement (“NRF”) claim by way of written representation after being refused permission to land on the same date. He was then transferred to Castle Peak Bay Immigration Centre. His NRF claim form was submitted on 8 September 2015 and dealt with under the USM[1].

2.The applicant attended a screening interview on 29 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 6 October 2015 and by Notice of Further Decision (re BOR 2) on 15 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 appeals on 4 December 2015 and 24 January 2019. The Adjudicator considered the appeals on all applicable grounds including BOR 2 and refused them on 11 January 2016 and 22 February 2019 respectively.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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 Christian. He was born on 3 March 1993 in the Amritsar district of the Punjab. He has had a limited education and worked in construction whilst in India. In 2014, the applicant entered into a relationship with a Sikh lady whose family were involved with the SAD[2]. The relationship displeased the family and he maintains he was attacked with bats for approximately two minutes, as a result of which he suffered bruising. The applicant reported the attack but was advised by the police to listen to the family. The applicant lost contact with the young lady after the incident but some time after the first attack, the applicant was further assaulted in his home by a larger group of men who ransacked his house. They threatened him and urged him to convert to Sikhism. This beating was worse than the last incident but he believed there was no attempt to kill him and his family were unharmed.

5.As a result of the second incident the applicant moved some five to six hours away from his home village. The situation at home remained the same with the attackers maintaining that the applicant should convert. It does not appear that any threats were made to the rest of the applicant’s family, who were also Christian. Despite the distance between his home village and new residence, the applicant maintains that his attackers came to find him and beat him up once more with similar exhortation to convert but this time they threatened to kill him and left him with an injured hand and wounded shoulder. Neither of these attacks were reported to the police. The applicant simply moved to Amritsar. As he remained afraid of his attackers and of the SAD, he decided to leave for 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 Decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeals as a rehearing, the Decisions of the Director are not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[3].

Decision of the Adjudicator

9.The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. The applicant confirmed the truth and accuracy of his claim. The applicant was provided with an opportunity to explain the changing grounds of the threats against him which originally centered on the need for him to convert to Sikhism in order to marry his girlfriend and then to simply a threat to convert without more. The fear arising from any political connection the girlfriend’s family had was not made out. The Adjudicator took all matters into account, investigated the issues arising thoroughly and correctly set out the law and key legal principles including the burden and standard of proof. The applicant did not fulfil the burden placed upon him.

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 her 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 those bodies or persons 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 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: 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

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 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[4].

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 Samuel 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 2444/15/10/113/IN511 BOR 200/17/2/109/IN62 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1673/15 (formerly RBCZ 373/15) RBCZ 9001792/16 (formerly RBCZ 373/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)