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

HCAL717/2017

[2018] HKCFI 1111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 717 of 2017

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong lawfully on 3 September 2011, under a Visitor’s Visa, which he extended but thereafter overstayed from 26 September 2011.  He was arrested by the police for overstaying on 24 March 2012, and referred to the Immigration Department two days later.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 April 2012.  He was released upon recognisance on 11 May 2012.  His NRF claim form was submitted on 20 July 2015.

2.  The Applicant attended a screening interview on 10 September 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 16 September 2015 and by Notice of Further Decision (re BOR 2) on 18 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 25 September 2015.  The Adjudicator of the TCAB, Mr Ian Candy, heard him on 1 September 2017, and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal and affirmed the Decision of the Director on 21 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 4 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 10 October 1995 in the Punjab.  He is now 22 years old.  He was raised in a family of police officers and lived in police quarters.  In 2010, when he would have been 14, the Applicant maintains that he was hit by a car whilst riding his bicycle some distance from his home.  The accident left him unconscious but fortunately it occurred immediately outside of a local hospital.  He received bruises and scratches which were cleaned and he was discharged two hours later.  The Applicant did not know the people in the car although he suggests they were members of Babbar Khalsa, the Sikh separatist group (“BK”), who are terrorists.  This was based on the fact that his grandfather had been killed by BK as he had been a policeman who had killed several members of the group.  At the time of his grandfather’s killing, BK had threatened to kill the family.  Although the Applicant had not been born at that time, he was sure the threats were current and he would be killed if the opportunity arose.  The Applicant did not report this incident, nor did his father who was a policeman, at the time.  This was the only threat the Applicant faced.  The incident unnerved the Applicant and so he decided to flee to Hong Kong in 2011, when he was coming up to 16 years of age and to enter Hong Kong with his paternal uncle who was a Hong Kong resident.  He was able to obtain a passport and travel to Hong Kong freely.

The non-refoulement claim

5.  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.

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 Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in India at present.  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 in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was sent a letter dated 19 April 2014, in which he was notified of his right to be considered under BOR 2 and given an opportunity to make further submissions.  He chose not to do so.  The Applicant’s case was a narrow one.  There was no prejudice in not being heard on the matter as there was no evidential foundation to suggest that this head of claim would be applicable in his case.

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.  The Applicant gave evidence and was subject to questioning.  He was given the opportunity to make a closing submission and relied upon documentary evidence to support the fate of his grandfather.  In coming to his decision to reject the Applicant’s claim under the various heads, the Adjudicator acted reasonably and explained his decision on the merits (or lack thereof) in a clear and intelligible manner.  He was of the view that the Applicant’s concerns over the single incident in which he was involved were speculative in nature with no proper evidential basis for the suggestion that the incident was caused by BK.  Even more speculative, was the suggestion that BK were still likely to seek revenge upon his family by killing him when no one else in his family had been harmed since his grandfather’s death.  In any event, the Applicant was given every opportunity to make his case and establish the burden of proof placed upon him, which he was unable to do.

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.  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

11.  Despite the fact that this Applicant did not submit any grounds of review, given the fact that he is unrepresented and still very young, I have gone on to consider the papers and submissions, which I have done 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 Director and 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 their determinations, which were open to them 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.

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