GURDEV SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1097/2017

[2018] HKCFI 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1097 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only
	consideration of documents and oral submissions by the Applicant in open court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is an India national. He is now aged 28 (DOB: 7 August 1989). 

2.  The Applicant said he would be killed by SP in India, who was the head of the Applicant’s village. SP was a Sikh and a member of the Shiromani Akali Dal Party (“SAD”). He was rich and affiliated with the police and high-rank officials in Punjab. He did not like the growing popularity of Dera Sacha Sauda (“DSS”), which was a social welfare organization. DSS had conflicts with the Sikh people.

3.  The Applicant was also a Sikh but he was an active supporter of DSS. He started to work for DSS in 2012. SP did not like the Applicant's enthusiasm in DSS. He worried more villagers would follow DSS and that the Applicant would be more popular than him. SP wanted the Applicant to support him and to quit DSS.

4.  In February 2015, SP brought some men to the Applicant's home. He threatened the Applicant not to support DSS or the Applicant and his family would be in trouble.

5.  A month later, the Applicant and his friends had conflicts with SP’s followers and the SAD people. The Applicant was injured. His father reported the matter to the police. However, the police did not take action.

6.  In May 2015, SP and his followers again threatened the Applicant not to support DSS. They made similar threats to the Applicant's father.

7.  The Applicant's father was a bus driver. He was prosecuted in a driving case. SP’s followers had warned the Applicant that SP could influence the court to convict his father. The Applicant’s father was indeed subsequently convicted and sentenced to one year’s imprisonment.

8.  Later, the Applicant was attacked by SP’s followers and injured. The police again took no real action.

9.  The Applicant was informed by a man close to SP that SP wanted to kill the Applicant. The Applicant’s father then advised the Applicant to leave India.

10.  On 1 July 2015, the Applicant left India for China. On 5 July 2015, he tried to enter Hong Kong. (Actually, a year ago the Applicant attempted to enter Hong Kong from Macau on 23 July 2014. He was then refused permission to land.) This time, the immigration officer also refused to let the Applicant land.

11.  Two days later, on 7 July 2015 the Applicant sneaked into Hong Kong. He was arrested. He sought non-refoulement protection subsequently.

12.  The Applicant said his family had now disowned him because they feared SP. He had also lost contact with his girlfriend, probably because of SP’s intervention.

13.  The Applicant did not think the India authorities police could protect him. He said the India police were corrupt and only acted on bribes. He was not aware there were other authorities in India that could offer assistance to him.

14.  The Applicant said internal relocation was not possible as SP had good connections and could find him anywhere in India.

15.  In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

16.  On 18 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

17.  Things happened in this order: –

2014-7-23	The Applicant arrived in Hong Kong from Macau. He was refused permission to land.
2015-7-5	The Applicant tried to enter Hong Kong from China. He was again refused permission to land.
2015-7-7	The Applicant entered Hong Kong illegally. He was arrested by the police.
2015-7-9	The Applicant lodged a non-refoulement claim.
2017-5-17	The Director held a screening interview with the Applicant.
2017-5-31	The Director refused the Applicant’s claim with respect to the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR 2 risk.) [“the Director's decision”]
2017-11-9	The Applicant appeared in person before the Board for appeal.
2017-12-8	The Adjudicator refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-12-18	The Applicant applied for leave for judicial review.

Respondents

18.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

19.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Board as respondents. The Director is the first putative respondent; the Board is the second putative respondent.

20.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

21.  In the present case, the Director's decision dated 31 May 2017 was more than three months old by the time the Applicant filed his current application on 18 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 8 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 18 December 2017; the application against the Board's decision was made within time.

Director of Immigration (the Director)

22.  In the Director’s decision dated 31 May 2017, the immigration officer did not make specific finding on the Applicant’s credibility. However, even on the strength of the Applicant’s claim, the officer found the level of risk of harm by SP against the Applicant was low. The officer was not satisfied that the Applicant had been inflicted with ill-treatment to a minimum level of severity. The officer considered that with the passage of time SP’s enmity would have diminished if not dissipated at all.

23.  The officer was aware there was corruption in the India police force. However, there had been ongoing reforms. The officer considered that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.

24.  The officer did not accept there was any real torture risk, persecution risk, BOR3 risk or BOR2 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds.

TCAB/NCPO (the Board)

25.  In his report, the Adjudicator set out the facts and the law clearly.  The Adjudicator found that there were a number of implausible or inconsistent features in the Applicant’s allegations. He found the Applicant incredible and had fabricated his claim.

26.  The Adjudicator did not accept the Applicant had any real risk that warranted non-refoulement protection. On 8 December 2017, he refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Grounds of judicial review

27.  In his affirmation, the Applicant complained about lack of legal assistance during in the later stages of the screening process and lack of language assistance. He said the director had not given him a fair chance to explain his case further in relation to BOR2 risk.

Court hearing

28.  In Form 86, the Applicant requested a hearing.  The hearing took place on 18 May 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court.

29.  In court, the Applicant first applied for adjournment. He said he was refused legal aid. He had appealed against that refusal decision. The appeal was heard on 15 May 2018. He did not know the result. The Applicant asked the court to adjourn his application for judicial review to after that appeal decision.

30.  It is not known when that legal aid appeal result would come out. There is also no guarantee that the Applicant would win the appeal and be guaranteed of legal representation in the near future. There is no reason to adjourn the current application for leave for judicial review for something uncertain. I thus refuse the Applicant’s asking for adjournment.

31.  The Applicant said he knew little English and needed language assistance. Someone helped him to prepare Form 86 and the affirmation. All the grounds of his application for judicial review were there.

32.  The Applicant also confirmed he had submitted all his information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim. He was represented by the Duty Lawyer Service up to the stage when the Director rendered his decision on 31 May 2017.

Discussion

33.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

35.  The Applicant complained that he had not been provided with sufficient legal assistance. He was represented by the Duty Lawyer Service until the Director rendered his decision on 31 May 2017.

36.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37.  The Applicant complained that he had not been given sufficient interpretation/translation assistance.

38.  In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for him. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents.

39.  The Applicant complained that the Director did not give him a fair chance to explain his case further in relation to BOR2 risk.

40.  The Director did not deal with BOR2 risk separately. He considered the Applicant's claim with respect to all the four applicable grounds in one go. The Applicant himself admitted that he had submitted all his information and documents to the Director for his consideration. At that stage, he was still represented by the Duty Lawyer Service. I do not accept that the Applicant had been deprived of any chance to present his case fully on BOR2 risk or any other applicable ground.

41.  I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of the Applicant's complaints against the Director or the Adjudicator.

42.  In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. Each had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director’s report and the Adjudicator’s report showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

43.  The Applicant's complaints are not reasonably arguable against either the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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