VERMA SUNNY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1075/2017 [2018] HKCFI 2490 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1075 of 2017 BETWEEN Verma Sunny Applicant Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent 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; ( consideration of the documents only; or consideration of the documents and the Applicant being present/absent in open court; Order by The Honourable Mrs Justice Campbell Moffat: Leave to apply for judicial review be refused. Observations for the Applicant: Procedural history The applicant entered Hong Kong legally on 13 January 2015, from India and thereafter overstayed. He surrendered to the Immigration Department on 29 January 2015 and was released on recognisance on 17 March. The applicant submitted a non-refoulement ( ) claim by way of written representation on 24 March 2015. On 15 November 2016, he was convicted of being in possession of a forged ID and of taking employment without permission and given 16 months imprisonment. His NRF claim form was submitted on 14 July 2017. The applicant attended a screening interview on 27 July 2017. The Director of Immigration ( the Director ) dismissed his claim by Notice of Decision ( the Decision ) on 31 July 2017. He appealed the Decision to the Torture Claims Appeal Board ( the TCAB ). The adjudicator of the TCAB, Mr Anthony WM Yuen ( the Adjudicator ), heard his appeal on 17 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 1 December 2017. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. Background The applicant is an Indian national. He was born on 8 September 1989 in Mandhetar, Himachal Pradesh. He received 17 years of formal education obtaining a bachelor s degree in hotel management and worked in a hotel between 2011 and 2014. The applicant s claim arises over an inter familial dispute over land between himself and his great uncle who has affiliations with the Indian National Congress ( ). The land in question had been transferred to the applicant in March 2014. Shortly afterwards, four to five masked men with weapons approached the applicant and informed him that his great uncle wished to develop the land. They demanded that the applicant transfer part of the land to the great uncle but he refused. As a result, they assaulted him with wooden poles. The applicant went to hospital afterwards but did not require any medical intervention. He did try to report the assault to the police but they refused to register the complaint as he believed they had been in touch with the leader of the INC. A month later, the applicant was approached once again by a group of men wearing masks who attempted to persuade the applicant to sign a transfer of his land. He refused and was assaulted, this time with swords and knives. During this assault, one of the attackers accidentally killed one of the other assailants. The applicant managed to escape but was shot at. The applicant himself was not hurt during this assault. As a result of these attacks, the applicant went to live with his sister but whilst staying with her, he continued to receive telephone threats and so he moved to Chandigarh where he worked part time in a hotel. In late 2014, his great uncle and his men attempted to grab him in Chandigarh but he managed to escape unhurt. He had no idea how it was that his great uncle knew where he was at that time. As his sister advised him to leave India, the applicant decided to come to Hong Kong. The non-refoulement claim Under the Unified Screening Mechanism ( ), the applicant s claim is to be assessed on all applicable grounds which are: 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. 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 ( 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. 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. 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 ( 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. 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 As the applicant has 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 claimant and dealt with. Decision of the Adjudicator The Adjudicator analysed the applicant s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He explained the procedure to be adopted and asked questions which the applicant answered. In applying the factual case, as he found it to be, he correctly set out the law and key legal principles including the burden and standard of proof. He noted that the dispute concerned only a small part of the land owned by the applicant. He also noted that there was only one attack in which the applicant received minor injuries, which was not indicative of the necessary standard of potential harm if the applicant were to be returned to India. This was clearly a private dispute. In any event, the Adjudicator felt the applicant could re-locate. Leave to apply for judicial review 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 the Adjudicator when dealing with his application in order to obtain leave to judicially review them. Grounds of review There were no grounds of review. The applicant seeks for a re-hearing of his appeal. He has not complained of any 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 Despite the fact that the applicant did not submit any grounds of review, I have considered the papers 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 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 his determination, which was open to him on the facts and eminently reasonable. 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 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 Verma Sunny 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 8085/17/8/123/IN1543 Director of Immigration Putative Interested Party s ref. no.: QA T/C 1341/17 (formerly RBCZ/11273/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT h?Qk h?Qk hx%= hGu h?Qk h?Qk h?Qk h?Qk h?Qk hx%= ho>^ gdr< h?Qk h?Qk h?Qk h?Qk h?Qk hr< h?Qk h?Qk ytu_ ytu_ ytu_ ytu_ h?Qk h?Qk ytu_ ytu_ ytu_ ytu_ ytu_ gdr< ytu_ hkYU h?Qk h?Qk h?Qk h?Qk hr< h?Qk hr< h?Qk hr< ziXE4 hkYU hkYU hkYU hV5a gdkYU {h[N[A1 hC6) h Mi gd^C gd^C gd^C gd^C ucRC hU}E h/pk ^O^@^ hhZA hM2k gdr| gdzA gdzA gd @ uUuFu hM2k h4rI ufuWfHu9Hu h5kH h4rI h5kH ~kZRJA1 h?Qk h?Qk siWiN h?Qk h?Qk wogo^X^SN n^P^P^P^n h?Qk :p6X ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ ytu_ S!:V [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> mS X (LI'6 hB%, _%sAp hB%, _%sA (LI' & 6" Call 1 Judiciary HCVF8350R1.DOT Windows User Microsoft Office Word Call 1 Title <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" SelectedStyle="\APASixthEditionOfficeOnline.xsl" StyleName="APA" Version="6"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{1519E926-44D9-4186-8085-D6639147F633}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8