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HCAL692/2017
[2018] HKCFI 1076
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 692 of 2017
BETWEEN
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Mondal Entaj |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 legally on 12 April 2014 from India. He overstayed as of 27 April 2014, and was arrested on 13 May 2014. He was transferred to the Immigration Department on the same date and submitted a non-refoulement (“NRF”) claim by way of written representation on 15 May. He was released upon recognisance on 25 June 2014. His NRF claim form was submitted on 16 November 2015.
2. The Applicant attended a screening interview on 7 March 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 9 May 2016, and by Notice of Further Decision (re BOR 2) on 29 December 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 23 May 2016. The Adjudicator of the TCAB, Ms Kay Ransome, heard him on 27 January 2017, and considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 30 August 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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 and raised in Paschim Pachla Village, Kolkata, India. He was educated up to level 6 and is married with a daughter, who lives in India. Between 2002 and 2009, the Applicant assisted his father in an embroidery factory. Between 2012 and 2013, he worked as a shop assistant and latterly as the owner of a television shop. In 2013, the Applicant borrowed 1 million Rupees from a money lender. The Applicant defaulted on the monthly repayment of the principal in June 2013. In September 2013, the moneylender demanded repayment. The following month the moneylender threatened his life if he did not repay the sum owed. Neither incident involved any physical assault. The verbal threats continued after this date and the Applicant stopped running his business and moved away from Paschim Pachia.
5. In order to settle the debt, the Applicant moved to China on 21 November 2013, to look for business opportunities but returned after just two days. Between November 2013 and April 2014, the Applicant moved freely around India and to his home village without incident but decided to come to Hong Kong as he understood he would be protected if his life was in danger. At no stage did he report his situation to the authorities in India nor did he consider permanent relocation.
The non-refoulement claim
6. 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.
7. 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
8. 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. 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 invited to make further submissions in respect of a claim under BOR 2 but declined to do so. His claim was nevertheless properly considered and rejected.
Decision of the Adjudicator
9. The Applicant appeared before the TCAB on 27 January 2017, and was assisted by an interpreter. 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. The Adjudicator accepted that the Applicant had taken out a loan and that it had not been repaid, as a result of which he had faced demands for repayment. However, she also noted that he came to no actual harm at the hands of the moneylender and that he was able to avoid him by moving elsewhere. That being the case, the risk of harm to the Applicant was low and the ability to relocate without undue hardship was available to him. The Adjudicator reached her decision on the evidence available in an unbiased manner and having given the Applicant the opportunity to present his case, which was extremely weak if not, non-existent.
Leave to apply for judicial review
10. 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
11. 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
12. The Applicant had no case before the Director or Adjudicator. Nevertheless, they gave him every opportunity to be heard and addressed all matters in a relevant and logical manner. 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. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.
13. 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 5th day of July 2018.
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(Ms Queenie Mak)
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 granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 5/7/2018
Mondal Entaj
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 5/7/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3737/16/5/155/IN859
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001850/16 (formerly RBCZ/1953/14) (T7S32)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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