LAKHWINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL588/2018

[2019] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 588 of 2018

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 submission by the Applicant in open court

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 25 (DOB: 26 April 1993). 

2.  The Applicant claimed he would be harmed or killed by his uncle Kuldeep Singh (“Kuldeep”) and Kuldeep’s sons. Kuldeep was rich and an active member of the ruling party, the Indian National Congress (“INC”). He had an influential cousin Bhupinder Singh. He also befriended Pratap Singh, who was a Member of Parliament and the Chief of Congress in Punjab.

3.  The Applicant said his family owned a piece of land next to Kuldeep’s.  Kuldeep claimed the Applicant's land belonged to him.

4.  In March 2010, Kuldeep and his sons attacked the Applicant when the latter objected to their presence on the disputed land. The Applicant was injured. He was hospitalised for a few days. The matter was not reported to the police. The Applicant's father went to the village head for help but Kuldeep refused to settle.

5.  In December 2010, Kuldeep and his sons injured the Applicant’s brother. The matter was reported to the police. The police tried to arrest Kuldeep’s sons. Kuldeep apologised. The Applicant's father then withdrew his complaint.

6.  Later, the Applicant and his brother assaulted one of Kuldeep’s sons for revenge. They then left the village and went separate ways. The Applicant stayed with his friend for some months.

7.  Kuldeep and his sons had gone to the Applicant’s home to threaten his father that they would kill the Applicant. The father called the Applicant to warn him. The Applicant then joined his brother and the two moved to live elsewhere.

8.  On 2 December 2011, the Applicant left India for Hong Kong. His brother went to Dubai.

9.  The Applicant was refused permission to land in Hong Kong. He raised a torture claim and was released on recognisance on 21 February 2012. However, he failed to report to the Immigration Department on 3 April 2012.

10.  The Director of Immigration (“the Director”) refused the Applicant's torture claim on 27 April 2012.

11.  The Applicant was re-arrested by the police on 22 November 2012.

12.  The Applicant applied to UNHCR for asylum but later withdrew his application. He was repatriated to India on 10 December 2012.

13.  After going back to India, the Applicant was told by his friend that Kuldeep and his sons knew he had come back. They were looking for him for revenge. The Applicant dared not go home. He stayed in a Sikh temple in New Delhi for two months before moving to live with his aunt. He learnt his enemies threatened his parents that they would kill him.

14.  The Applicant stayed in his aunt’s place for five months. Nothing eventful happened. However, while visiting his parents in July 2013 he was captured by his enemies. They assaulted him but some neighbours came to his rescue. After receiving treatment, the Applicant stayed in a friend’s place until November 2013. Then he went back to New Delhi.

15.  On 4 December 2013, the Applicant left India for China. He did not seek protection there. A few days later, he sneaked into Hong Kong. The Applicant feared being sent back to India so he did not surrender to the Immigration Department immediately.

16.  One and a half years later on 9 June 2015, the Applicant approached the Immigration Department. He lodged a non-refoulement claim on 8 September 2015.

17.  The Applicant said his enemies were still after him. The India police could not protect him because of Kuldeep’s influence. He said Kuldeep could locate him wherever he was in India.

18.  In the ensuing two-tier screening process here, 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 (BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

19.  On 9 April 2018, the Applicant applied for leave for judicial review.

Timeline

20.  Things happened in this order: –

2011-12-3	The Applicant arrived in Hong Kong. He was refused permission to land. He raised a torture claim. He was released on recognizance on 21 February 2012 but failed to report to the Immigration Department on 3 April 2012.
2012-4-27	The Director refused the Applicant's torture claim.
2012-11-22	The Applicant was arrested by the police.
Dec 2012	The Applicant applied to UNHCR for asylum but he later cancelled his application.
2012-12-10	The Applicant was repatriated to India.
2013-12-4	The Applicant left India for China.
2013-12-7	The Applicant sneaked into Hong Kong from China.
2015-6-9	The Applicant surrendered to the Immigration Department.
2015-9-8	The Applicant raised a non-refoulement claim.
2017-4-28	The Director refused the Applicant’s claim with respect to all the four applicable grounds:  torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”]
2018-3-23	The Applicant appeared before the Board for appeal.
2018-4-6	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2018-4-9	The Applicant applied for leave for judicial review.

Respondents

21.  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.

22.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.

23.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.

The Director's decision

24.  The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.

25.  On 28 April 2017, the Director refused the Applicant’s claim with respect to all the four applicable risks.

The Board's decision

26.  The Applicant appealed against the Director's decision to the Board. The Adjudicator interviewed him on 23 March 2018.

27.  The Adjudicator found there were inconsistent and unsatisfactory features in the Applicant’s allegations. He found the Applicant evasive and his evidence vague. While the Adjudicator was prepared to accept the Applicant had a land dispute with Kuldeep leading to attacks, he did not accept Kuldeep and his sons had any real intention to seriously harm or kill the Applicant. If they really had that intention, they could seriously harm or kill the Applicant. They did not. The Adjudicator found the Applicant had exaggerated and embellished his evidence. There was a lack of credible support of his claim. The Adjudicator further noted the Applicant had not claimed protection in China or soon enough in Hong Kong. He arrived in Hong Kong again in December 2015 illegally but only surrendered to the Immigration Department some 18 months later in June 2015. The Adjudicator was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found internal relocation was available to the Applicant in any event.

28.  On 6 April 2018, the Applicant refused the Applicant's claim with respect to all the four applicable grounds.

Grounds of judicial review

29.  In Form 86, the Applicant complained against the Director and the Adjudicator. As said in paragraph 23 above, I shall deal with his application in relation to the Board's decision only because the Director's decision had gone on appeal to the Board for rehearing.

30.  The Applicant complained the Adjudicator’s decision was not reasonable or fair. He said he faced life risk. He accused the Adjudicator failed to give him sufficient time and chance to rearrange relevant evidence for his appeal.

Court hearing

31.  The hearing took place on 3 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

32.  The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds.

33.  The Applicant said he was in custody between May 2017 and March 2018. He was still in custody when the Board hearing took place on 20 March 2018. He thus could not prepare his proofs for the appeal.

34.  I asked the Applicant what those proofs were. He said they were some police and hospital reports relating to incidents in 2010 but they were yet to be obtained from India. He said he never had possession of them and did not have them even now.

35.  The Applicant confirmed he had submitted all the proofs he had with him to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

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

37.  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]  Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

38.  The Applicant said he was still in custody when the Board hearing took place on 23 March 2018. He thus could not prepare his proofs for the appeal.

39.  In court, the Applicant said the alleged proofs were some police and hospital reports relating to incidents in 2010 but they were yet to be obtained from India. He never had possession of them and did not have them even now.

40.  The alleged proofs were vague talk. There was no evidence that the Applicant had ever tried to get hold of the alleged proofs if they exited at all.  There was no evidence that he had asked the Adjudicator for adjournment to get hold of such proofs. The Applicant confirmed he had submitted all the proofs he had with him to the Director and the Adjudicator. I am satisfied the Applicant had been given sufficient time and chance to prove his claim to the Director and the Adjudicator.

41.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

42.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him 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