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HCAL 943/2017
[2018] HKCFI 2216
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 943 of 2017
BETWEEN
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Jarnail Dass |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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;
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 sought to enter Hong Kong legally on 21 July 2014 but was refused permission to land and was repatriated to India. On 11 December 2014 he returned but travelled on to China and then sneaked into Hong Kong on 16 December. He was arrested by the police on 10 March 2015 for illegally remaining and conspiracy to defraud. He was convicted of the latter on 7 May 2015 and given four months’ imprisonment. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10, 12, 14 May 2015. His NRF claim form was submitted on 4 February 2016.
2. The Applicant attended a screening interview on 4 May 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 May 2016 and by Notice of Further Decision (re BOR 2) on 25 January 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 25 May 2016. The Adjudicator of the TCAB, Ms CKS Lam (“the Adjudicator”), would have heard his appeal on 6 February 2017 but he failed to attend. In the end, she heard him on 10 and 11 August 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 12 October 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 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 20 September 1987 and lived in Burj Hamira. He is single, has 10 years of formal education and worked in a factory and latterly as a farmer. The Applicant and his brother are members of the Indian National Congress (“INC”). In late 2013 members of the Akali Dal Party (“ADP”) and Bharatiya Janata Party (“BJP”) were seeking to recruit the Applicant and his brother to BJP. That did not work and so they took revenge by making false allegations of assault against the Applicant’s brother which led to him being detained by the police for three to four hours. Subsequently the Applicant and his brother changed their affiliation to the BJP but this caused difficulty with INC. This led to verbal threats and assault. In 2014, the Applicant and his brother were attacked by INP members who had weapons and in defending himself, the Applicant injured an INP member. When they returned home, their house was surrounded by INP members seeking redress. The Applicant and his brother sought to escape but were shot at as they did so. They fled to a relative’s house some 40km away. Fearing that he was the true target of their anger, the Applicant fled to Maharashtra, Andhra Pradesh and then Kolkata. He was tracked down in each place and received abusive phone calls and death threats, which is when he first attempted to land in Hong Kong but was repatriated. After that the Applicant worked as a driver in Kolkata without incident but in fear of being found, he left once more for 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 (“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 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. She arranged for more than one 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. She found the Applicant had failed to establish his claim even upon the low standard required but even taken at its highest, there was no real risk that he would be the subject of the prescribed treatment. She fully explained why she found that to be the case.
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 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
10. There were no grounds of review. 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 that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (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
11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers 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 her determination, which was open to her on the facts and eminently reasonable.
12. 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 7th day of December 2018.
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(Ms Queenie Mak)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 7/12/2018
Jarnail Dass
Applicant’s ref. no:
Nil.
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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 7/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3762/16/5/180/IN867
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2720/15 (formerly RBCZ 11793/15)
RBCZ 9000048/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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