AHMED FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL709/2017

[2018] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 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 13 February 2016 from China. He had travelled to and from Hong Kong on many previous occasions.  He overstayed as of 28 February 2016, and surrendered to the Immigration Department on 29 February.  He was released upon recognisance on 5 April 2016, and submitted a non-refoulement (“NRF”) claim by way of written representation on 26 June 2016.  On 4 October 2016, he was arrested and prosecuted for possession of dangerous drugs and received six months’ imprisonment.  Upon his release, he has been detained in Castle Peak Immigration Centre.  His NRF claim form was submitted on 2 June 2017.

2.  The Applicant attended a screening interview on 19 June 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds on 22 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Wesley Wong, heard him on 7 September 2017.  The Adjudicator considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 15 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 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 22 November 1991, and is single. He lived in Kabitirtha, Kolkata and is a Muslim.  He is a university graduate.  From 2008, the Applicant worked in sales and from 2012, he became the owner of a mobile phone and accessories shop.  In 2010, the Applicant met and fell in love with a Hindu lady “Kirti”, who comes from a wealthy family which belongs to a higher caste.  Her father disapproved of the relationship.  In 2015, the Applicant started to get telephone messages telling him to stay away from Kirti.  In the same year, the Applicant believes that he was deliberately run over by a car in which her father was sitting. He only received bruises as a result and did not report the matter to the police.  Later that year, his shop was looted by masked men carrying knives.  They used their bare hands and their knives to beat him up and made references to Kirti and to the fact that he would not have a business in order to be able to marry her.  This incident resulted in injury to his right arm and side which is now scarred.  He did report this incident to the police but was warned off by them.  Because of the continued pressure from Kirti’s father, the Applicant decided to come to Hong Kong to avoid further interference.  In fact, the Applicant had been to Hong Kong already in 2015.  He had travelled to Hong Kong in January, February, August, September and November of that year.  He also came to Hong Kong in January 2016 before leaving for China.

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”).  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 Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given the opportunity to state his case. In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

8.  The Adjudicator also 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.  The Applicant had the opportunity to address the Tribunal and state his case, which was, in any event, not a strong one.  The Adjudicator had concerns about the veracity of the Applicant, but nevertheless considered his case in a reasonable and unbiased manner.

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 but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  I have considered the papers, grounds and submissions 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.  This was a weak case. Despite the onus being upon the Applicant, the Director and 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 their determinations, which were open to them 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.

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