MAMSA TARIQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL711/2017

[2018] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 711 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 legally on 15 July 2008 on a visitor’s visa.  He was arrested on 15 July 2009 for overstaying.  He was transferred to the Immigration Department and released upon recognisance on 23 July 2009.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 July 2009, and his claim form on 16 June 2014.

2.  The Applicant attended a screening interview on 10 September 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 22 September 2014, and by Notice of Further Decision (re BOR 2) on 5 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 October 2014.  The Adjudicator of the TCAB, Ms Mary Yuen, confirmed from the papers that it would be proper to consider his appeal without hearing the Applicant further.  She considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 16 August 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 2017, 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 Sunni Muslim.  He is now 34 years of age and married his Indonesian wife in 2010. They now have a son and they live with him in Hong Kong.  He was born and raised in Kidder Pore, Kolkata and was educated to primary 5.  He had originally trained to be a chef but latterly had run a wholesale garment and mobile phone business.  This business necessitated trips to Hong Kong and he undertook several such trips, dating back to 2003, prior to arriving here lawfully in July 2008.

5.  In January 2005, the Applicant met a Hindu girl who was from a higher caste.  This led to an altercation with her family in 2006, in which the Applicant was slapped once and received death threats.  The Applicant was not injured and did not report the incident to the police. The relationship continued without either family knowing until 2007, when his girlfriend’s family stopped him in the street and beat him up.  He did not receive any injuries and did not report the matter to the police.  The discovery of their intimate relationship has meant that she cannot find a suitable marriage partner and, as a result, her family are still very angry with the Applicant.  He was beaten again in April 2008, but treated himself with pain killers and did not report the matter.  He suffered another assault from her family a month later but this time someone used a hockey stick as a weapon and he received a cut to his forehead near to his left eye for which he needed stitches.  Shortly afterwards his home was vandalised by her family and his family was threatened.  Neither incident was reported because the Applicant was of the view that his girlfriend’s family was far more important and influential.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was 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 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

8.  The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case.  In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned he was sent a letter on 19 April inviting him to submit on this head of claim, which he declined to do.  There was no basis within his original claim to suggest that this head of claim would be in any way applicable to his case.

Decision of the Adjudicator

9.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She did not arrange an oral hearing as she was satisfied could be justly determined without doing so having reminded herself of the appropriate test for so doing.  On the facts of this case, it is was within her discretion to do so.  The Adjudicator treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  This was an entirely private dispute, no longer live and one in which the Applicant failed to approach any person in authority to seek protection.  There was nothing to indicate that there would be any supplemental information which could have raised what was, on any view, a hopeless case.

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.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and 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

11.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but 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 there were no grounds of review, 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.  The Director and Adjudicator considered all relevant criteria, The Applicant was given a reasonable opportunity to state his case before the Director, which could not have been improved upon before the Adjudicator given its very narrow confines.  They both enquired into that case appropriately.  There is no criticism of their determinations nor the procedure adopted, which were open to them on the facts and eminently reasonable.

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.

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