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HCAL 1009/2017
[2018] HKCFI 2281
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1009 of 2017
BETWEEN
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Karamjeet Singh |
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 1 October 2015 and overstayed. He surrendered to the Immigration Department on 19 October 2015. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 March 2016. On the same day, the Applicant was arrested for making a false representation to an Immigration officer when he first landed in Hong Kong in that he purported to be a visiting Hockey player and thereafter overstayed. He was released on bail. He was later released upon recognisance on 16 November 2015. His NRF claim form was submitted on 29 June 2016.
2. The Applicant attended a screening interview on 29 July 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 9 September 2016 and by Notice of Further Decision (re BOR 2) on 2 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Mr Stuart Stoker (“the Adjudicator”), heard his appeal on 17 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 27 November 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 4 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 on 16 July 1987 in Sekhupur in the Punjab. He is single, a Sikh and from the Jatt caste. The Applicant had 12 years of formal education and between 2007 and 2015 he farmed the family land. This claim arises out of an inter‑familial dispute over the family land which commenced in 2013, when the Applicant alleges his grandfather was killed by his aunt and her brothers because the land was to be left to his father. According to the Applicant, the aunt (who was his deceased uncle’s wife) was a powerful woman with influence over the police in the local area and she and her family were associated with Shiromani Akali Dal (“SAD”). Therefore, when he registered a complaint over his grandfather’s death, the police did not make a First Incident Report.
5. Nothing more happened until 2015, when his aunt and eight to nine people came to the Applicant’s home and assaulted him with wooden sticks and kicked him. He received internal injuries as a result and was taken to a local clinic where he was found to have a broken arm. The Applicant reported this incident to the police but no further action was taken despite the Applicant being able to recognise his aunt and a number of his attackers. Thereafter the Applicant went to Delhi and then to Ludhiana for a short period without incident but eventually returned home. He continued to receive threats from his aunt and others who were armed with weapons but he was not harmed at that time. In September 2015, the Applicant alleges that his aunt falsely filed a report against him of trafficking in dangerous drugs. He was remanded for one day but then released unconditionally after a bribe was paid. No proceedings ensued and the case was closed. After his release he was advised by a friend that he had information that the Applicant was to be falsely charged once more in the future and therefore he left India and came to Hong Kong.
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 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. He explained the procedure to the Applicant and gave him an opportunity to expand upon his case, which he did. In evidence, the Applicant could no longer remember the details of his grandfather’s death. He could not explain why he, rather than his father or his brothers, would be targeted by his aunt who wanted the land which was currently owned by his father and not by him. He could not explain the period of two years between his grandfather’s death and the first incident in 2015. Despite saying in his NCF that he recognised his aunt and some of her brothers as his assailants when they came to his home and broke his arm, he could not say at the hearing who had caused him injury or indeed if her brothers had in fact been there at the time. On the other hand, the Adjudicator noted that the Applicant was in a position to add to his earlier testimony in that he now said that he had received threatening phone calls from his aunt’s brothers when he was in Delhi, Ludhiana and Moga. That, and other matters detailed in the decision of the Adjudicator, indicated a lack of credibility. On the accepted evidence the Applicant had failed to establish his claim to the requisite standard despite being given every opportunity to do so.
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. 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
11. Despite the fact that the Applicant did not submit any 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 was open to him 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.
Dated 4th day of December 2018.
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(Ms Queenie Mak)
for Registrar, High Court |
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
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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 4/12/2018
Karamjeet Singh
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 4/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4932/16/9/311/IN1042
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001770/17 (formerly RBCZ 11148/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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