ABHAYJOT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 987/2017

[2020] HKCFI 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 987 OF 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong on 1 July 2014 and was refused permission to land.  He returned on 3 July 2014 and was refused permission once more but submitted a non‑refoulement claim by way of written representation on 4 July 2014.  His non-refoulement claim form was submitted on 1 August 2014.

2.  The applicant attended a screening interview on 21 August 2014.  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 5 September 2014 and by Notice of Further Decision (re BOR 2) on 9 May 2017.  He appealed the Decision and Further Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Michael Collier Jenkins (“the Adjudicator”), heard his appeal on 17 May 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 17 November 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 30 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 1 October 1993, in Ambala City.  His claim arises out of an inter-familial dispute over land.  The applicant’s grandmother owned a house, which was to have been inherited by his father and two aunts in equal shares upon her death.  In 2004, the applicant’s father passed away.  In the normal course of events, as the eldest son, the 1/3 share of his grandmother’s house would have passed to the applicant.  However, in 2006, when his grandmother passed away, under her will the house passed in equal shares to the aunts alone.  The applicant and his mother believed this to have come about as a result of undue pressure from his aunts.  The will was then the subject of a civil case brought by the applicant’s mother.  In 2011, the applicant says that he received telephone and personal threats from the two aunts over a six‑month period, seeking to persuade him to drop the civil suit.  He eventually reported the matter to the police.  According to the applicant, the police refused the case.  He suspected that it was because his aunts were influential locally and with the Akali Dal Party.  The harassment continued and the applicant says he became depressed as a result.  In 2012, the applicant was approached by two to three unknown men, who told him to withdraw the case and who slapped him twice on the cheek and pushed him to the ground.  Once on the ground, he was kicked and punched for two minutes.  The men fled when the applicant screamed.  As a result of this attack, the applicant received bruises and cuts from the rough surface of the road.  He did not seek medical assistance or report the attack.  According to the applicant, between 2012 and 2014, these same men continued to observe him and threaten him as a matter of routine.  He was attacked on several occasions but received only minor injuries which he treated at home.  In 2014, the assault escalated as the men approached him armed with hockey sticks and threatened to break his arms and legs, although they only actually slapped his face.  As the applicant had been told they were members of Akali Dal, the applicant did not believe he would be assisted by the police if he reported these incidents.  Nor did he tell his mother.  Instead, after his college exams, the applicant left to stay with a friend some 50 to 60 km away in Chandigarh.  He says that after a few days he saw his assailants in Chandigarh and returned home.  Realising they could find him anywhere, the applicant decided to come to Hong Kong.

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 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

7.  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 appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

8.  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 correctly set out the law and key legal principles including the burden and standard of proof.  He addressed the allegation against his aunts and their apparent influence but found no basis for that suggestion.  The matter was clearly before the civil courts in India and would be resolved in due course.  There was no suggestion of state interference or neglect.

Leave to apply for judicial review

9.  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

10.  In so far as the applicant submitted grounds of review as against the Adjudicator, they are summarised as follows:

i)     The Adjudicator misdirected himself in law by finding that the applicant had to have experienced torture in the past in order to establish substantial grounds for believing there was a risk of torture.

ii)     The Adjudicator failed to carry out sufficient and up‑to‑date specific and general COI research, which led to an unfair decision.

iii)     The Adjudicator failed to take into account any such research; failed to put weight upon the research actually carried out and taken into consideration; cherry‑picked that research and placed weight upon COI, which was of little or no relevance.

iv)     The Adjudicator failed to take cognisance of whether there was a pattern of gross, flagrant or mass violations of human rights in India.

v)     The Adjudicator failed to analyse and assess whether state protection in its normal and extended form exists in India and whether the state had exercised the relevant due diligence.

vi)     The Adjudicator placed weight upon irrelevant, in accurate or incorrect considerations or unreasonably inferred such facts and unreasonably failed to take account of such facts and inferences as were favourable to the applicant.

vii)     There was no legal representation before the Adjudicator.

11.  The applicant has a duty to state not only the grounds of his intended judicial review but must also show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. In order to do so, it is not sufficient to place before the court generic grounds without more.  Nor does it assist the applicant to place before the court grounds which have no basis in fact to the case before the Adjudicator or are in contradiction to well established authority.

12.  As to i) above, the Adjudicator correctly outlined the legal principles to be applied in respect of a claim under Article 3 at paras 8‑12 of his Decision.  At no point within that test does he find that an applicant has to prove experience of torture in the past in order to establish substantial grounds for believing there will be a risk of torture in the future if the applicant is refouled to India.  It is necessarily a part of the analysis of an applicant’s claim to quantify any harm inflicted upon the applicant in the past in order to assess the possibility or probability of harm in the future.  To that end, the Adjudicator correctly noted that the level of harm done to the applicant previously was not severe.  On any version of events it amounted to slaps, grazing, punches and kicks, none of which required hospitalisation.  Under Article 3, there must be a possibility of severe pain and suffering.  The facts did not suggest the possibility or likelihood of future severe pain and suffering given the past injury.  The applicant has failed to establish (in his professionally drafted grounds) what evidence the Adjudicator had before him which would have indicated the requisite risk of harm i.e. the possibility of severe pain and suffering,and which he says the Adjudicator ignored.

13.  As to ii) and iii) above, this is a ground often cited before this court and never supported by reference to any COI whether that be COI not taken into consideration or COI incorrectly taken into consideration and thereafter misapplied.  Until the applicant can point to COI misapplied in the manner suggested, this court is not in a position to consider the merits of such a complaint save for that which is self-evident upon the papers.  The Adjudicator clearly took COI into consideration and applied it appropriately to the facts of this case.  This was a private matter.  The applicant went to the police once because of harassment and did not report the alleged assaults at all.

14.  As to iv), it is incumbent upon the Adjudicator to consider the basis of the claim before him.  This was a private dispute.  This ground is irrelevant to the facts at hand.  The applicant should have indicated in what way an assessment of gross, flagrant or mass violations of human rights (if that had been the case) would have impacted upon the decision of the Adjudicator in his case.

15.  As to v), once again, this was a wholly private matter.  In what way does the applicant say that the issue of state protection in either sense, was applicable to this claim?  The Adjudicator took into account the applicant’s limited dealings with the police and addressed it.

16.  As to vi) above, this ground is wholly unhelpful.  What facts were inaccurate, incorrect, irrelevant or not reasonably inferred?  I have taken into account the applicant’s claim at its highest and find no fault with the Adjudicator’s analysis.

17.  As to vii), this matter has been the subject of a number of decisions of the Court of Appeal and is not a proper ground of review.  As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director.  Having been unsuccessful at that stage, the Director of Legal Aid considered whether his case had sufficient merit to grant him further representation before the TCAB and decided it did not.  There is no absolute right to free legal representation at all stages of proceedings[1].

Conclusion

18.  I have considered the papers, grounds and submissions 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.

19.  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.

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