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

HCAL 1124/2017

[2018] HKCFI 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1124 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant attempted to enter Hong Kong lawfully on 27 July 2014 but was refused.  He attempted once more on 1 August 2014 and was also refused but at that time he submitted a non-refoulement (“NRF”) claim by way of written representation and was therefore transferred to the Immigration Department.  His NRF claim form was submitted on 1 September 2014.

2.  The Applicant attended screening interviews on 16 and 22 September 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 September 2014 and by Notice of Further Decision (re BOR 2) on 13 February 2017.  He appealed the Decision and Further Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Yu Cheuk‑man, did not hold a hearing. The Adjudicator refused his appeal against the Decision on 5 June 2015 and his appeal against the Further Decision on 3 November 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 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 in the Punjab on 8 April 1988.  He received six years of formal education and then worked on his family’s farm.  He is married with one daughter.  This claim arises out of a family dispute over land given to the Applicant’s father and disputed by his uncle “Sukhchain”.  In January 2013, whilst working the land with his father and brother, the Applicant and his family were attacked by Sukhchain and his sons along with some of their friends.  The assault was made with hockey sticks and swords, lasted 10 to 15 minutes and the Applicant received a wound to his head, which was treated in a private clinic with three stitches.  His father received no injury and his brother hurt his ribs.  The incident was reported three days later but before they were about to follow up the complaint, the Applicant and his father and brother were once more accosted by Sukhchain and were threatened by him.  The police were not prepared to take the matter further and so the Applicant’s family went to the village elders who negotiated a payment to be made by the Applicant’s father to Sukhchain.  This did not resolve the tension between the two limbs of the family and a further dispute took place at the end of 2013 in which the sons of the two brothers assaulted each other.  After this incident, the Applicant fled with his wife and child to his parent‑in‑law’s home but in April/May 2014 he was attacked once again by the same group, received threats to kill and injured his knee, which resulted in him being hospitalised for a week.

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 the 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 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 and further decision of the Director

7.  The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as outlined above.  He considered a wide range of documentary evidence including documentation submitted as to the general situation in India at present.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was informed by letter dated 28 December 2016, that the Director was to consider his claim under BOR 2 and he was invited to make further submissions thereon but he declined to do so.

Decision and further decision of the Adjudicator

8.  The Adjudicator did not hold an oral hearing.  He accepted the facts as contained in the papers and did not doubt the credibility of the witness.  He therefore analysed the Applicant’s claim at its highest on all applicable grounds on both occasions.  He treated that analysis as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He accepted the level of injury to the Applicant and the need for medical treatment but found that injury did not satisfy the burden upon him to show that it was sufficiently severe to amount to torture and that in any event this was a private matter with no evidence of any state or quasi state links.  Indeed, it was a matter which was resolved through private mediation.  There was therefore only a low risk of any future harm if the Applicant were to be refouled to India and it would not be unreasonable for him to re-locate if necessary as there was no evidence of any state connection to this dispute.

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 specific 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.  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.  Despite the onus being upon the Applicant, the Director and 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 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