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

HCAL 646/2017

[2018] HKCFI 2489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 646 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 legally on 6 June 2014, but thereafter overstayed.  He surrendered to the Immigration Department on 25 June 2014.  The applicant submitted a non‑refoulement (“NRF”) claim by way of written representation and was released upon recognisance on the same day.  He was the subject of a removal order on 26 January 2016.  His NRF claim form was submitted on 12 April 2017.

2.  The applicant attended a screening interview on 12 May 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 25 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Anthony WM Yuen (“the Adjudicator”), heard his appeal on 4 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 31 August 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 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 on 6 February 1988, in the Punjab.  He is married with a son but they currently live in India.  The applicant’s claim arises out of a dispute over land which is owned by the applicant’s family.  That land adjoins other land farmed by another member of the applicant’s village, “Ranjit”.  Ranjit wished to pass across the applicant’s family land to reach his own land rather than circumnavigate it as that journey took 15 minutes longer.  On one occasion only, the applicant remonstrated with Ranjit about him crossing their land and Ranjit walked away without further incident.  However, later the same day, four police officers came to the applicant’s family home and spoke with his grandfather who later told the applicant that the police wished him to come to the police station because of the incident.  The applicant did not do so.  Instead, his grandfather dealt with the village elders and a truce was negotiated.  This was the only time the applicant had dealings with Ranjit before he came to Hong Kong in 2014, although subsequent to this, he maintains that Ranjit used his political connections to have his cousin framed for trafficking in dangerous drugs.  Whilst his cousin was in prison, Ranjit built a pathway over the applicant’s family land.

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 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 applicant appears to review the Decisions of both the Director and the Adjudicator.  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 of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

8.  The applicant seeks to review the decision of the Adjudicator only. 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 noted inter alia that this was a private dispute between the applicant’s family and Ranjit.  The applicant had never been assaulted by Ranjit or threatened by him. Nor was he improperly dealt with by the police or any other government agency. When the applicant came to Hong Kong in 2014, he did so with his wife and son in order to sight see and not to avoid Ranjit.  The Adjudicator found that the applicant had failed to establish his case to the applicable standard under any head of claim.

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 Decision 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

10.  There were several grounds of review which were very similar to those often submitted to this court and which were not supported by any direct evidence of impropriety.  There was also a suggestion that the applicant wished to rely upon new evidence.  It is a waste of this court’s time to sift through the morass of complaints tendered when the applicant has made no effort whatsoever to actually identify the true substance of his complaint and has merely copied other grounds of review.  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: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered the papers submitted to identify the grounds relied upon, rather than the mere submissions on law, for the purposes of considering whether to grant leave.

11.  They are summarised as follows:

i) There was no evidence upon which the Adjudicator could conclude that the applicant had failed to establish his claim under all heads.

ii) The Adjudicator did not consider his case carefully.

iii) The Decision was procedurally unfair.

iv) The Adjudicator failed to carry out sufficient research and apply it appropriately.

v) The applicant was not granted legal representation.

vi) The Adjudicator failed to consider the concept of state acquiescence or extended state acquiescence.

vii) The Adjudicator failed to consider whether there exists in India a consistent pattern of gross and flagrant contraventions of human rights.

viii) New evidence that the applicant’s wife and child has been attacked and tortured and that his father has been threatened.

12.  As to ground i), the burden of proof rests upon the applicant to establish his claim to the requisite standard.  This was an extremely simple case and the facts were limited.  There was no evidence before the Adjudicator upon which the Adjudicator could conclude that the applicant had satisfied the burden of proof placed upon him.  This ground is without merit.

13.  As to grounds ii) and iii), there is nothing within the Decision to suggest that the Adjudicator had done anything other than be fair to the applicant and considered his case objectively, applying the applicable law to it.  The applicant had every opportunity to address the Adjudicator, which he did.  These grounds are also without merit.

14.  As to ground iv), this was a purely private dispute in which the applicant had not been threatened or harmed.  The Adjudicator could not have been criticised if he had decided to refer to no COI at all.  It was not applicable to the claim but he did do so.  He considered all the various elements which he was required to consider including relocation.  This ground is also without merit.

15.  As to ground v), the fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases.  The assessment is on a case-by-case basis.  The applicant did apply to the scheme for legal representation and he was refused. This ground is not reasonably arguable.

16.  As to ground vi), no complaint was made against any government department. Indeed, the police handled the dispute with discretion and did not press the matter further when it was dealt with by the village elders.  There is no substance in this ground and it is without merit.

17.  As to ground vii), this is irrelevant to the applicant’s case. It has no merit.

18.  As to ground viii), this is not a proper ground of review.  It is without merit.  Should the applicant obtain leave to judicially review the decision of the Adjudicator, an application can be made at that time to adduce further evidence if appropriate.

Conclusion

19.  Despite the fact that the applicant submitted generic grounds of review, I have considered the papers and grounds 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.  

20.  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