GHOTIYA NANU RAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL661/2017

[2018] HKCFI 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 661 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 allowed.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong on illegally on 25 March 2014 and surrendered to the police on 6 April 2014.  He was transferred to the Immigration Department on 7 April 2014 and released upon recognisance on 26 April 2014.  His NRF claim form was submitted on 20 August 2015.

2.  The Applicant attended screening interviews on 18 November and 3 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR2) by Notice of Decision (“the Decision”) on 7 March 2016 and by Notice of Further Decision (re BOR 2) on 23 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 17 March 2016.  The Adjudicator of the TCAB, Siu Choi-fat, heard him on 19 July 2017 but the Applicant failed to attend.  The Adjudicator refused his appeal on 29 August 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 September 2017.  He 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 Bekliya in India on 20 May 1973. He is married with a wife and three children who currently live in India.  He was a farmer.  He, his family and half of his village support the Indian National Congress Party (“INC”) without holding any party position.  The remainder of his village supports the Bharta Janata Party (“BJP”), who are currently in power.  In February 2014, the Applicant says that he was assaulted by members of BJP and received cuts and bruises which were treated at a local clinic and which took 20 to 25 days to heal.  He did not make a complaint to the police or to his village council.  The Applicant could not say why he had been selected for this abuse and threats as opposed to any other member of his family or village but he decided to leave as he feared for his life.  He did not try to relocate.

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”);

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”);

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”); and

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”).

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 on two separate occasions as outlined above.  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 respect of his claim under BOR 2, the Applicant was given an opportunity to make further submissions and chose not to avail himself of that opportunity.  As a result, and out of an abundance of fairness to the applicant, the Director nevertheless considered his claim using the available papers but nevertheless found against him.

Decision of the Adjudicator

8.  The Adjudicator determined that an oral hearing was required.  The Applicant was notified of the date of that hearing but failed to attend.  A further notice was sent to the Applicant on 19 July 2017, in which he was required to provide an explanation for his non-attendance.  That notice stated that the Adjudicator would proceed to consider his appeal in his absence.  The Applicant failed to reply to the letter of 19 July 2017, no doubt because he believed his appeal was to be considered in any event, whether he appeared or not.  Unfortunately, this did not occur.  The Adjudicator did not consider the appeal on the papers.  He took the view that it was for the Applicant to appear in order to establish his case to the requisite standard. He had not done so and therefore the Adjudicator dismissed the appeal without more.  It was open to the Adjudicator to treat the appeal as a rehearing on the papers. He could have considered the law and key legal principles including, but not limited to, the burden and standard of proof.  It may be, that in deciding an oral hearing was necessary, the Adjudicator had taken a preliminary view that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to India but the applicant was entitled to a formal consideration of those issues regardless of his attendance, which was not done in this 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/her 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 and have found it arguable that the Adjudicator may have acted unreasonably and unfairly in giving the Applicant an indication that his appeal would be considered on the papers but then failed to do so.

Conclusion

11.  In my judgement, there is a reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there is a realistic prospect of success if he were to be granted leave. I therefore allow 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