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HCAL 574/2017
[2020] HKCFI 1987
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 574 OF 2017
BETWEEN
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Manjinder Singh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 lawfully on 19 May 2012 and thereafter overstayed. He was arrested by the police on 10 May 2013 for breach of condition of stay and for possession of a false instrument. He was convicted of both offences and sentenced to seven months’ two weeks’ imprisonment. He was discharged from prison on 9 October 2013. His non‑refoulement claim form was submitted on 5 October 2015.
2. The applicant attended a screening interview on 1 December 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 7 January 2016 and by Notice of Further Decision (re BOR 2) on 15 November 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Hau Cheuk‑man (“the Adjudicator”), heard his appeal on 20 October 2016. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 3 April 2017.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 September 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 10 July 1983, in the Punjab. In July 2011, the applicant was involved in a motor accident in which he killed a young boy. He maintains that whilst still at the scene of the accident, he bribed the investigating police officers to help him leave the scene, as the crowd which had gathered, would not allow him to drive away. Later that day, he found his car at his home address but it had been damaged and the inside of his home had also been damaged. According to the applicant’s guardian mother, the damage had been carried out by eight to nine men who were looking for the applicant and who threatened the applicant’s life. Shortly afterwards, the applicant believed he was being followed by the same men. In retaliation, he and his friends sought them out and assaulted them. The applicant also threatened the young boy’s family for having the men follow him. For some months after that, there were unsuccessful attempts to pay compensation to the boy’s family but the applicant received abusive phone calls and visits from agents of the family, which were also threatening. As a result of advice from his adoptive father, the applicant left India and eventually came to Hong Kong.
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 (“the 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 of the Adjudicator
7. The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing, which he was obliged to carry out on the papers as the applicant elected not to give evidence. He correctly set out the law and key legal principles including the burden and standard of proof and applied those principles to the applicant’s case at its highest. He properly considered the actual harm which befell the applicant and the likely consequences of the accident. He also considered the limited involvement of the police and applicable state protection. Given the facts, as presented, the applicant had not made out his case.
Leave to apply for judicial review
8. 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
9. There were several non-specific grounds of review which are similar to others received by this court and which were not supported by particulars. These were:
i) The Adjudicator erred in assessing the level of risk to be low.
ii) The applicant did not receive any letter asking for additional facts and grounds.
iii) The Adjudicator relied upon the previous facts and COI, which were in favour of rejection.
iv) Actual life is different from COI.
v) The Adjudicator ignored overwhelming evidence of violence towards minorities and relied upon unrealistic silver lining.
vi) There was bias which led to an unfair assessment of the danger to the applicant’s life which was calculated to reject the claim.
10. The applicant is reminded that he has a duty to state the grounds of his intended judicial review and to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is not sufficient merely to copy the grounds of others without more. I have nevertheless considered whether the papers indicate any such grounds for the purposes of considering whether to grant leave.
11. As to Ground i), the Adjudicator correctly applied the appropriate legal and evidential test to the various heads of claim. Having assessed the facts as originally presented by the applicant, he found they fell short of establishing the burden placed upon him and assessed the risk to the applicant as low, which was open to him on those facts.
12. As to Ground ii), the applicant submitted a Notice of Appeal. In so doing, he was given the opportunity to outline his dissatisfaction with the Decision and to submit additional information for the re-hearing on appeal. He does not require a further letter asking him to do so. His Notice of Appeal is the opportunity to do so. At the hearing itself, the applicant was given the opportunity to give evidence but he elected not to do so and wished to rely upon the bundle as presented. He made no reference to any desire to adduce additional evidence at that stage and stated he had no further information or materials to submit.
13. As to Grounds iii) and iv), the fact that the papers before the Adjudicator did not support his claim, is no fault of the Adjudicator. It is for the applicant to prove his case to the requisite standard. In the absence of material submitted by the applicant, the Adjudicator considered the relevant available COI to assess both local and national conditions relevant to the applicant’s claim. If that COI was incorrect upon a point in issue, it was for the applicant to say how that was the case and why. To this end, he was already in receipt of the Decision of the Director and would have an indication of where material relied upon by the Director may mislead the Adjudicator. A perusal of the COI does not suggest that it was inapplicable.
14. As to Ground v), there was no evidence of overwhelming violence relevant to the facts of the claim, which were placed before the tribunal by the applicant. Indeed, there was next to no violence upon these facts.
15. As to Ground vi), the applicant has not identified the suggested bias. Without more, it is difficult for the court to understand how this alleged bias manifested itself. It is noted that the Adjudicator directed an oral hearing to allow the applicant to be heard and that, having done so, the applicant did not wish to testify. It is also noted that in his reasons for decision, the Adjudicator said “I am acutely aware that this case must be considered with utmost caution and a high standard of fairness, as my decision may have life threatening consequences for the Appellant”.
Conclusion
16. 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 attempted to engage in a joint endeavour with the applicant who refused the opportunity to testify. The Adjudicator considered all relevant criteria and enquired into the case on the papers presented to him. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.
17. 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 the 12th day of August 2020.
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(Marcus Wong) |
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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.
Notes for the Applicant:
If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar:
(i) a copy of the sealed judgment or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and
d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and
e) comply with Order 59 of the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 12 August 2020
Manjinder 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 12 August 2020
Torture Claims Appeal Board /Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2985/16/1/108/IN684
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000393/16
(formerly QA T/C 1654/15, RBCZ 560/14) |
Form CALL-1
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