AHMED TOSIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1102/2017

[2018] HKCFI 1822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1102 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 25 May 2014 from India and surrendered to Immigration Department on 25 June 2014, having overstayed since 9 June 2014.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on the same day.  He was released upon recognisance on 20 July 2014.  His NRF claim form was submitted on 2 February 2016.

2.  The Applicant attended a screening interview on 14 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 12 April 2016 and by Notice of Further Decision (re BOR 2) on 4 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 25 April 2016.  The Adjudicator of the TCAB, Mr Kevin Browne, heard him on 27 September 2017. The Adjudicator refused his appeal on 24 November 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 December 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 in Pilkhana, India on 1 January 1988 and is 30 years of age.  He is a Muslim and single.  His claim arises from the conversion of a friend “Ashok” to Islam.  In April 2014, he was accused of brainwashing Ashok.  Thereafter, whenever the Applicant met this group of Hindus, they would threaten to kill him but did not actually assault him until late April 2014 when he was assaulted by several men wielding cricket bats for about one minute.  Luckily the assault was broken up by members of his Mosque and he needed only painkillers from a local clinic to deal with injuries to his leg.  This incident was not reported to the police as the Applicant believed that the ring leader was associated with the Bhartiya Janta Party (“BJP”) and he believed that he was influential with the police.

5.  As a result of the attack, the Applicant left India on 9 May 2014 arriving in Hong Kong on 10 May.

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.  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 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 notified of his right to be considered under BOR 2 by way of letter dated 31 May 2017, and was invited to make submissions thereon.  He failed to do so.

Decision of the Adjudicator

9.  Before the Adjudicator, the Applicant was unrepresented but had the benefit of an interpreter even though he spoke fluent English.  The procedure was explained and he was afforded the opportunity to add to the bundle before the Tribunal but he declined to do so.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He had 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 noted that this was a religious dispute of a personal nature rather than a political one.  Although there had been one incident in which he had been attacked with cricket bats, the injuries he received did not meet the minimum level of severity and there were no substantial grounds for believing he would be the subject of harm if he returned to India and, in any event any such risk if it had been proved, is restricted to his home area.  Therefore, relocation is open to him considering his age, educational background and work experience as a salesman.

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 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 save a statement to the effect that the finding of the Adjudicator was unfair and unreasonable.  In essence, the Applicant asks for a re-hearing of his appeal.  He has not complained of any specific 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

12.  Despite the fact that the Applicant did not submit any proper 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 his determination, which were open to him 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