|
HCAL 838/2017
[2018] HKCFI 2754
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 838 of 2017
BETWEEN
|
Amrit Singh |
1st Applicant |
|
Gurjit Kaur |
2nd Applicant |
|
Re:A |
3rd Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
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 applicants entered Hong Kong legally on 29 October 2014 and thereafter overstayed. They surrendered to the Immigration Department on 25 November 2014. The 1st and 2nd applicants submitted a non-refoulement (“NRF”) claims by way of written representation on 5 February 2015 and the 3rd applicant on 8 October 2015. Their NRF claim form was submitted on 27 January 2016.
2. The applicants attended a screening interview on 26 February 2016. The Director of Immigration (“the Director”) dismissed their claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 20 June 2016 and by Notice of Further Decision (re BOR 2) on 11 July 2017. They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard their appeal on 9 October 2017. The Adjudicator considered their appeal on all applicable grounds including BOR 2 and refused their appeal on 20 October 2017.
3. The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 November 2017 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicants are Indian nationals. They come from the Punjab. This claim arises out of an inter‑caste marriage which was not approved by the 2nd applicant’s family. The 1st applicant is a Sikh from the Carpenter caste. The 2nd applicant is also a Sikh but from the Chhimbe caste. Her father is the head of (or Surpanch) of her village. They were both born in 1985. The 3rd applicant was born in Hong Kong on 10 August 2015. In 2013 the 1st applicant worked as a carpenter in the 2nd applicant’s family home. At this time, the 2nd applicant was working as a teacher. A relationship grew between them but they were warned that the difference in their social status would prohibit marriage. Nevertheless, the couple did get married, in secret, on 15 September 2013 but told no one and continued to live separate lives until the 2nd applicant’s parents arranged a marriage for her, at which point she had to disclose her married status. The family were very angry and threatened to kill the 1st applicant. The couple fled to the Golden Temple in Amritsar where they remained for the next few months. However, whilst there, the 1st applicant was attacked by the 2nd applicant’s family. He received an injury to his hand but did not seek medical treatment for it. The couple did not report the incident to the police, instead they came to Hong Kong.
The non-refoulement claim
5. Under the Unified Screening Mechanism (“USM”), the applicants’ 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 applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their 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 applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their 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 applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their 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 applicants must establish a real risk that they will be arbitrarily deprived of their lives, have a death penalty imposed upon them; or be the victims of genocide or otherwise be deprived of their 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 applicants had established the factual basis of their claim. The Director and the Adjudicator must then assess the level of harm the applicants say they fear. Each ground of claim above has a relevant level of risk. It is for the applicants to establish that they are the subject of such risk. Under the HKBORO, they must show substantial grounds for believing that the harm which they fear 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 they fear.
Decision and Further Decision of the Director
7. The applicants seek to review the Decisions of both the Director and the Adjudicator. As the applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimants and dealt with[1].
Decision of the Adjudicator
8. The Adjudicator analysed the applicants’ 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. This was a very simple claim based upon facts which at their highest amounted to an incident with a knife, which did not necessitate medical intervention. There was no political element. This was a private family matter. Accordingly, the applicants have not established that they fell under any head of claim to the requisite standard.
Leave to apply for judicial review
9. Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Adjudicator. The applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain leave to judicially review him.
Grounds of review
10. The applicants have submitted eight grounds of review against the decision of the Adjudicator. They can be synthesised into the following complaints:
I. The Adjudicator acted irrationally and/ or unreasonably, in that he:
a. failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;
b. failed to place weight on relevant information;
c. placed weight on irrelevant information, or incorrect or inaccurate facts;
d. failed to consider a consistent system of human rights violations;
e. failed to consider if state protection exists in Pakistan;
f. failed to consider or place weight on relevant COI and cherry picked that which he chose to consider;
II. There was procedural impropriety in that the Adjudicator:
a. made insufficient enquiry;
b. failed to investigate COI;
11. There are no particulars provided for any of the applicants’ grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicants and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicants have a duty to state the grounds of their intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is incumbent upon the applicants to make good their grounds, which they have failed to do. Without more, the court is restricted to that which is self‑evident from the papers. All of the applicants’ grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case.
Conclusion
12. Despite the fact that the applicants did not submit any grounds of review, I have considered the papers and grounds 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 very simple claim without factual merit. Despite the onus being upon the applicants, the Adjudicator engaged in a joint endeavour with the applicants and considered all relevant criteria; gave the applicants a reasonable opportunity to state their case and enquired into that case appropriately. There is no criticism of that determination, which was open to the Adjudicator on the facts and eminently reasonable.
13. In my judgement, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave. I therefore refuse leave for judicial review.
Dated 19th day of December 2018.
|
(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:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 19/12/2018
Amrik Singh
Gurjit Kaur
Re:A
Applicant’s ref. no:
Nil.
|
|
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 19/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4007/16/6/197/IN922
USM 4008/16/6/198/IN923
USM 4009/16/6/199/IN924
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ/9002389/17 (formerly RBCZ/10604/15)
RBCZ/9002370/17 (formerly RBCZ/10603/15)
RBCZ/9002412/17 (formerly RBCZ/539/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|