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

HCAL 427/2019

[2022] HKCFI 855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 427 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 20 August 2015 via Hong Kong International Airport.  He was refused permission to land and was transferred to the Immigration Department on 21 August 2015 when the applicant submitted a non-refoulement (“NRF”) claim by way of written representation.  His NRF claim form was submitted on 9 October 2015 and dealt with under the USM[1].

2.  The applicant attended a screening interview on 19 October 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 28 October 2015 and by Notice of Further Decision (re BOR 2) on 13 March 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 against the Director’s Decision on 12 January 2016.  The Adjudicator considered his appeal on all applicable grounds (not including BOR2) and refused his appeal on 28 January 2016.  The applicant also appealed to the TCAB against the Further Decision in respect of BOR2, which was refused 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 4 October 1993, in the Punjab and is Sikh.  He received 13 years of formal education and worked as a farmer prior to coming to Hong Kong.  The applicant and his family are all members of the Congress party and as such, the applicant was heavily involved in an election in November 2014. On 20 November 2014, the applicant was with four others manning an election booth when members of the opposition destroyed it and used a sword, wooden sticks and a bat to assault the applicant and his friends. The assault lasted for only 8-10 minutes as a crowd gathered and forced his attackers to flee. The applicant suffered an injury to his mouth and broke a tooth in the assault.  He also had bruises on his knees and back.  He maintains that he was hospitalised for five days with these injuries.  Upon release, he sought to make a First Incident Report at the local police station and was required to pay a bribe, which his father paid although the applicant failed to follow up at all on the investigation.  Even though his attackers won the election, the applicant says that they went to his house about a month later armed with baseball bats.  They threatened the applicant because he had made a complaint to the police and a gun was pulled and aimed at the applicant’s father. The men beat him unconscious.  He was black and blue and went to the hospital the next day although he did not require sutures.  He was discharged from hospital a week later and sent to his grandmother’s house to avoid his assailants.  He remained with his grandmother for over two months during which time he was safe and not subject to any threats.  However, he returned to Adampur and almost immediately met his assailants who assaulted him once more.  He tried once again to report the matter to the police but refused to pay the required bribe and was warned that his assailants were now connected to government.  As a result, the applicant fled once more, this time to Chandigarh where life was uneventful for him until

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 of the Adjudicator

7.   The applicant seeks to review the Decisions of the Adjudicator.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  She noted that objective support for much of his case could have been easily obtained but he had failed to do so.  The applicant was given the opportunity to address the concerns of the Adjudicator.  A number of inconsistencies were pointed out to the applicant with documentary support but the applicant declined to comment to make good his claim. The applicant eventually simply refused to answer.

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.  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

9.  There were no grounds of review.  The applicant seeks 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 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

10.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. The Adjudicator gave the applicant every opportunity to make his case to the requisite standard. 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 thorough and diligent joint endeavour with the applicant and considered all relevant criteria; gave the applicant a more than reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable[2]. As for his appeal under BOR2, the applicant was out of time.  The Adjudicator applied the relevant legislation applicable to late filing and in accordance with s37ZT of the Immigration Ordinance, Cap 115, considered whether an application for late filing should be allowed.  As the applicant had failed to provide any documentary support, the Adjudicator was therefore limited to the papers before her.  She applied all relevant legal principles in a fair and just manner providing her reasoning.  I cannot fault it.

11.  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] Nupur Mst v Director of Immigration [2018] HKCA 524