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

HCAL 175/2018

[2020] HKCFI 1429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 175 OF 2018

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  The applicant originally made a torture claim on 19 October 2007, which was rejected on 22 January 2014.  He appealed that decision to the Torture Claims Appeal Board (“the TCAB”) on 5 February 2014, but by letter dated 8 May 2014, he withdrew that appeal.  His appeal was therefore dismissed on 9 May 2014 and the applicant left Hong Kong on 29 May 2014.  Thereafter, the applicant surrendered to the Immigration Department for illegally remaining on 15 September 2015.  The applicant submitted a non-refoulement claim by way of written representation on 23 October and was released on recognisance on 20 October 2015.  He submitted a further non-refoulement claim by way of written representation on 15 December 2015.  His non-refoulement claim form was submitted on 26 May 2016.

2.  The applicant originally attended a screening interview on 4 November 2013 in respect of his torture claim and later on 29 July 2016 under the Unified Screening Mechanism (“USM”).  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 22 February 2017.  He appealed the Decision to the TCAB.  The adjudicator of the TCAB, Ms Susan Marie Pinto (“the Adjudicator”), heard his appeal on 15 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 5 January 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 February 2018 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 24 April 1978 in Manalia in the Punjab.  He is a Jatt Sikh.  He was born and raised in the Punjab, had 12 years of formal education and then worked on the family farm.  The background to his claim and his relationship with Hong Kong go back to 2002.  He claims that his family became involved with a group of militants who would come to his family home in the evening from time to time for food but would bring weapons with them.  According to the applicant, his family did not know their names or to which militant group they belonged and were told not to inform the police of their meetings.

5.  Eventually, the group of four men told the applicant’s family that they belonged to BAKD[1], whose goal was to establish a separate state called Khalistan.  The applicant, who was 24 at the time, was asked to attend a rally and when he showed some reluctance, they threatened to shoot his family if he did not.  The applicant attended the rally and was arrested by the police.  In the police station he says that he was beaten up by three policemen.  The next day, he was released without charge, after his father bribed the police.  No complaint was made against the police officers to either a senior police officer or to the village elders.  The applicant did not require any medical treatment.

6.  After this incident, the police attended at the family home frequently to enquire about BAKD militants.  The applicant says that he became “fed up” with this and so he started to consider leaving India altogether as he felt that he could be found by both the police and the militants if he remained in India.  His parents however, decided to remain at home.  The applicant and a friend came to Hong Kong via Thailand in 2002, but as he had been robbed in Thailand, he arrived with nothing save for his passport and ticket.  The applicant was given a two‑day visa only upon arrival and thereafter travelled to and fro between Hong Kong and China in order to extend his stay.  In 2003, he says that he lost his passport and it took him 1½ years to obtain a new one.  During the whole of that time he was accommodated and fed in a local Sikh temple.  He returned to India in 2004 once he had obtained his new passport.  Upon his return, the applicant found that the same group of men still visited the family home.  Four to five months later, the police came to his house (when he was not there) as they had received a complaint against him that he was involved with “bad people”, but his father bribed the officers and they went away.  As a result, the applicant decided to return to Hong Kong.  He arrived once more in December 2004 and travelled between Hong Kong, Macau and China for six months, but went back to India in mid‑2005.

7.  In November 2005, the group of militants demanded the applicant join another rally and threatened to kill his family if he did not do so.  He was arrested by the police once again for attending the rally.  He was beaten up by three to four policemen but released the next day when his father bribed the police.  His injuries were not serious and he did not require medical attention.  He then left home to live with his aunt some 15 km away.  The militants stopped going to his family home after November 2005. Nevertheless, the applicant returned to Hong Kong in December 2005.  He then lodged a refugee claim under the UNHCR in 2006 and a torture claim in 2007.  At that time, the applicant believed that he was wanted by the police for being a member of BAKD and being involved in a murder, but in 2014 the applicant was told these charges had been dropped and so he returned to India.  His return was without incident for a month but then he went to visit relatives for a few days in June.  Whilst away from his home, the police went to his home and told his parents that they had new evidence against the applicant.  The next day, his parents were arrested and beaten up.  They were released once the village elders became involved.  On hearing of this incident, the applicant fled directly to New Delhi and remained there for four months and thereafter went to stay with an aunt whilst he obtained a new passport which took several more months.  Eventually, he left India on 10 July 2015, by bribing an immigration official.

The non-refoulement claim

8.  Under the 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.

9.  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

10.  The applicant seeks to review the decision of the Adjudicator only.  She had before her, all of the papers from the original claim and from the claim dealt with under the USM.  She arranged for an oral hearing and treated the appeal as a rehearing.  The applicant maintained that his claim went back to the rally in 2002, but upon interrogation, the Adjudicator took the view that the applicant did not appear to be talking from his personal experience.  In particular, he was reminded that pro-independence groups for Khalistan were suppressed in the 1990s and there was no evidence of pro‑Sikh rallies in the Punjab in 2002 or 2005.  She informed the applicant of her concerns and he had nothing to say in response which addressed those concerns.  She correctly set out the law and key legal principles including the burden and standard of proof.  She analysed the applicant’s claim on all applicable grounds and found that the applicant had not established his claim under any head to the requisite standard.

Leave to apply for judicial review

11.  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

12.  There were no grounds of review.  The applicant seeks 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 show 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

13.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  In analysing that case on the papers, as she was bound to do, I have not found that the Adjudicator made 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 including an explanation of the detrimental effects of failing to answer questions where the onus was on the applicant to make out his case.  Despite the onus being upon the applicant, 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 the materials available to him appropriately.  The Adjudicator informed the applicant of her concerns and gave him an opportunity to address those concerns.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

14.  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