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HCAL 727/2017
[2018] HKCFI 1747
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 727 of 2017
BETWEEN
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Sk Siraj Uddin |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 entered Hong Kong legally on 18 December 2013, from India as a visitor, and was permitted to remain in Hong Kong until 1 January 2014. After overstaying from 2 January 2014, the Applicant sought assistance from the UNHCR on 6 January 2014. The Applicant surrendered to the Immigration Department on 5 March 2014. He submitted a non-refoulement (“NRF”) claim by way of written representation on the same day. The Applicant was released upon recognisance on 15 April 2014. He was then arrested by police on 16 July 2014 for trafficking in dangerous drugs. On 17 October 2014, he was convicted and sentenced to seven months’ imprisonment. On 4 December 2014, the Applicant was discharged from prison and transferred to the Immigration Department where he was released upon recognisance once more on 19 December 2014. On 26 September 2016, the Applicant was again arrested by police, this time for possession of a dangerous drug. He was convicted of the offence on 29 November 2016 and sentenced to eight months’ imprisonment. Upon being discharged from prison, the Applicant was remanded in custody by the Immigration Department on 13 April 2017, where he remains on remand. His NRF claim form was submitted on 29 December 2016.
2. The Applicant attended screening interviews on 27 January 2017 and 24 February 2017. The Director of Immigration (“the Director”) dismissed his claim (including that under BOR 2) by Notice of Decision (“the Decision”) on 7 April 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 21 April 2017. The Adjudicator of the TCAB, Ms Betty Kwan, heard him on 4 August 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 4 August 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 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. He was born on 16 April 1983, in Kolkata. After the divorce of his parents, the Applicant moved with his mother and step-father after his mother remarried. He received two years of education up to Class 2 in 1992 before starting work at age fifteen. The Applicant accrued seven years of working experience, firstly as a motorcycle mechanic, followed by intermittent periods as a salesperson between 2000 and 2012. He is a Muslim. His family have no formal political affiliations, however his father is a supporter of the All India Trinamool Congress Party and volunteers to canvass for votes during election periods.
5. The Applicant claims that since a young age he was beaten by his step-father on average two times per week, with bare hands and a belt. Despite his mother seeking medical treatment for him, these incidents were not reported to the police, for fear of repercussions from the Applicant’s step-father. In 2011, following a fight with a man named Abdullah, the Applicant learned of false theft claim against him, which he maintains was filed by Abdullah. He was released on the condition that he attend court every month until 2013. As far as the Applicant is aware, the case is still active in India and he has argued that this should be relevant to his non-refoulement claim since, should he be returned to India, the case may continue and he could face prison. Separate from this incident, the Applicant claims to have borrowed 500,000 Indian Rupees from his childhood friend (“Sunny”). However, on returning from a trip to Shenzhen, China to purchase mobile phones and batteries (“the goods”) to sell in India, the goods were seized by Indian Customs and the Applicant was fined a 100% levy for parallel trading, totalling between 100,000 and 150,000 Indian Rupees, which he settled with the remaining money borrowed from Sunny. The Applicant asserts that after telling Sunny of his loss, he discovered that Sunny had in fact borrowed the money from a man named Bobby, who was known as a gangster. This was followed by numerous threats from Sunny to return the money, otherwise Bobby would inflict serious harm upon the Applicant. Sunny also made near daily visits to the Applicant’s house to further threaten him. The Applicant claims that due to the disturbance caused by this, his step-father would beat him and deprive him of food, despite the Applicant being an adult. The Applicant did not approach any Indian authority for assistance, due to fears of corruption. These threats continued even after the Applicant arrived in Hong Kong, with the Applicant claiming that Sunny discovered his Hong Kong phone number and threatened to steal and sell the Applicant’s kidney if he was seen in Kolkata. He also claimed that he could not relocate internally in India, due to heavy suspicion of Muslims being involved in terrorist activities. Thus relocating alone would attract suspicion from the Baratiya Janata Party’s special taskforce called Rashitriya Swayam Sevak , who have been known to kill suspects.
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 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 on two separate occasions as outlined above. He considered a wide range of documentary evidence including documentation submitted by the Applicant which gave information regarding the rise in kidney sales in India and information about Bobby Hakim. 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 and to supplement the evidence before the Director, which he did. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits of the claim in a clear and intelligible manner, providing clear and logical reasons why the perceived threats were either unsubstantiated or not unlawful (in the instance of the False Theft Case). He also considered numerous pieces supplementary evidence in addition to those provided by the Applicant, in order to make an informed assessment of the claim.
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. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator considered the Applicant’s four bases of claim as separate and discrete issues, and assessed them in relation the risk of persecution; right to life or prospect of torture, or cruel, inhuman or degrading treatment, punishment or torture. In relation to the Applicant’s claims of being assaulted by his step-father, the Adjudicator identified that these events were historical in nature and that since the relevant time for determination of risk in a non-refoulement claim is the time the decision is made, that the assaults could not be considered in the claim. For the remaining three bases of claim, the Adjudicator did not consider that the evidence provided by the Applicant was credible and concluded that there was no real risk of persecution, torture or violations of BOR 2 or BOR3 rights. She therefore dismissed the appeal.
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 her application in order to obtain leave to judicially review them.
Grounds of review
11. The Applicant has submitted limited grounds of review. In particular, he submits that he was treated unfairly by reason of the fact that he was not provided with legal representation for advice but fails to state at what stage this occurred. In any event he was given every opportunity by the Adjudicator to make representations. The Director of Legal Aid will continue to provide representation to applicants in their appeal if they are of the view there is merit in their case. That assessment is on a case-by-case basis. This ground is not reasonably arguable. Further, the Applicant also asserts that a decision on his case was based upon “assumptions”. Unfortunately, the Applicant is no more specific with his explanation as to this ground. I have nevertheless gone on to consider the papers with a view to canvass the possibility that there may be other grounds of review not relied upon by the Applicant given his limited educational background. Based on the assessment of both the Director’s and Adjudicator’s decisions above, I find that the conclusions reached were arrived at in a principled and substantiated manner.
Conclusion
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 she were to be granted leave. I therefore refuse leave for judicial review.
Dated 24th day of August 2018.
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(Ms Queenie Mak)
for Registrar, High Court
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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 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 24/8/2018
Sk Siraj Uddin
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 24/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6919/17/4/195/IN1339
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3220/16 (formerly RBCZ 3000092/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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