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

HCAL 430/2019

[2022] HKCFI 857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 430 OF 2019

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 14 July 2015, but was refused permission to land.  At that time the applicant submitted a non-refoulement (“NRF”) claim by way of written representation and was detained in Castle Peak Bay Immigration Centre on 15 July 2015.  His NRF claim form was submitted on 25 August 2015 and dealt with under the USM[1] save for BOR2.

2.  The applicant attended a screening interview on 10 September 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 October 2015 and by Notice of Further Decision (re BOR 2) on 16 February 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal from the Decision on 2 December 2015.  The Adjudicator considered his appeal on all applicable grounds (not including BOR 2) and refused his appeal on 22 December 2015. The Adjudicator dealt with his appeal from the Further Decision (re BOR2) on the papers as it was out of time and refused it on 24 January 2019.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019 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 22 August 1987, in the Punjab. He has been educated up to Form 2 and is married with three children. He is a construction worker. In 2015, he and his friends helped a close friend ‘Raj’ and his girlfriend ‘Katrena’ to elope to Delhi.  The girlfriend’s father, ‘Ashok’, was a gangster with connections to the local police.  He accused the applicant of kidnapping his daughter and had his house searched by the police who were looking for her and Raj.  A short while later, the applicant and his friends were attacked by a group of unknown men but believed one of them was the girl’s brother.  They made a report to the police about the incident and went to hospital for treatment.  The applicant had minor injuries and recovered quickly.  Once back at home, they were asked by the police to attend at the local police station.  They were then detained and beaten up by six police officers with batons who wanted to know the whereabouts of Raj and Katrena.  Her father was also present during a part of the beating.  Later that night, whilst in detention, he was assaulted once more when he was pinned to the ground and hit with a stick until he lost consciousness.  The next morning, he was taken by the police to a clinic for medical attention and provided with painkillers before being returned to the police station whereupon he was further beaten, this time, about the face.  He was then threatened that he would be killed by Ashok once he was released by the police and therefore it would be better to tell them the location of Raj and Katrena.  He and his friend were released the next day but were constantly followed by the police and in May 2015, whilst riding a motor cycle, they were hit by a police car which resulted in them being thrown into the river.  As a result of that attack, the applicant and his friend ‘Jaspal’ moved to Hyderabad to seek work.  The applicant maintains that Katrena’s brother tracked him down to his workplace in Hyderabad and, along with three to four other men, they attacked him with hockey sticks.  Luckily, others intervened and as a result he suffered only bruising.  The applicant nevertheless remained in Hyderabad with Jaspal but in June, they were both in their boarding house when someone randomly fired shots into the building.  The applicant believed this was an attack by Ashok.  Both of the attacks in Hyderabad were reported to the police but no First Incident Report was taken.  According to the applicant, when they went to follow up on the shooting incident they were detained overnight by the police until they paid a bribe and when released were told to leave India as Ashok was looking to kill them.  As a result, the applicant and his friend went to New Delhi where Jaspal purchased tickets for them to come to Hong Kong.  According to his NCF dated 25 August 2015, they both came to Hong Kong together.  However, in his screening interview less than a month later, the applicant maintained that he had not come to Hong Kong with Jaspal and that he did not know of the whereabouts of Jaspal.  At the time of interview, he had had no contact with any member of his family nor Jaspal since July 2015.

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 both 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 the 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 the Director.  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 and Further Decision of the Director are not susceptible to judicial review once appeals to the Board have been pursued by the claimant and dealt with[2].  I will however consider the determinations of the TCAB, which are amenable to review.

Decision of the Adjudicator

8.  The Adjudicator analysed the applicant’s claim on all applicable grounds by her decisions of 22 December 2015 and 24 January 2019.  She arranged for an oral hearing for the initial appeal 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 noted that it was within the applicant’s power to obtain supporting evidence for some of his injuries and yet had provided none.  She also noted that no complaint had been lodged against the behaviour of the police who had assaulted him and that he had therefore failed to substantiate his claim.  In her findings, she noted that Ashok was not a public official nor had it been shown he was a member of SAD.  As at the date of the hearing, the applicant had no up to date knowledge of the current situation.  So far as his appeal against the Further Decision is concerned, the applicant was out of time.  The Adjudicator considered all applicable principles to an appeal which is out of time and cannot be faulted in her application of them.

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.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location.  The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the Decision of the Adjudicator,it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him/her.

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 show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (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, and may have inadvertently sought to appeal the Director alone and not the TCAB, due to the seriousness of the issues at hand, I have considered the papers carefully to ascertain if any grounds of review arise.  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 in respect of the initial appeal, 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 either of her determinations, which were open to her on the facts and eminently reasonable[3].  

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

[1] Unified Screening Mechanism

[2] Re Moshsin Ali CACV 54/2018; [2018] HKCA 549

[3] Nupur Mst v Director of Immigration [2018] HKCA 524