MANDEEP SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL735/2017

[2018] HKCFI 2408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 735 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 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 28 (DOB: 5 August 1990). 

2.  The Applicant claimed he would be harmed or killed by a man called Tasweer Singh (“TS”) due to a land dispute.

3.  The Applicant's ancestors had some farmland. The Applicant’s father owned the land until he died in 2003. In 2008, the land was divided equally among the Applicant and his two brothers.

4.  TS was a powerful landlord living nearby. He owned some land adjacent to the Applicant’s farmland.  TS had close connection with the police and leaders of the Shiromani Akali Dal Party (“SAD”).

5.  In July 2014, TS and some armed men confronted the Applicant. They asked the Applicant to leave his farmland. TS threatened to kill the Applicant and his brothers if they would not listen to him. He said he had the power and resources to bribe the police and government officials. The Applicant and his brothers were frightened. They fled. TS then occupied their land.

6.  The Applicant sought help from the village head Jaswinder. Jaswinder later replied to the Applicant that he could do nothing. He said TS was a dangerous man. Jaswinder asked the Applicant to give up his land.

7.  In July 2014, TS proposed to buy the Applicant's land at a low price. The Applicant refused.  TS threatened that he would not let the Applicant farm his land nor would he let the Applicant give the land to someone else.

8.  In August 2014，TS diverted the water supply from the Applicant's land to his own land, thereby drying out much of the Applicant’s land. The Applicant argued with TS. He was assaulted by TS’s men. The Applicant was injured but managed to escape. He fully recovered after one month. Then he planned to leave India to avoid TS.

9.  The Applicant left India on 14 September 2014. He arrived in Hong Kong as visitor the next day. However, he did not seek non-refoulement protection immediately. He went to Macau the next day and returned to Hong Kong on the same day. The Applicant was allowed to stay until 29 September 2014. He overstayed and was arrested by the police four odd months later on 11 February 2015. He then lodged a non-refoulement claim.

10.  The Applicant did not complain to the India police. He did not believe the India authorities could help him since TS was a dangerous man and would bribe the police and government authorities.

11.  The Applicant said internal relocation was not viable because he had no means to do so. He also claimed TS could motivate the police and the SAD members to locate him in India.

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

13.  On 6 October 2017, the Applicant applied for leave for judicial review.

Timeline

14.  Things happened in this order: –

2014-9-15	The Applicant entered Hong Kong as visitor. He left for Macau the next day and returned to Hong Kong that day. He was allowed to stay until 29 September 2014. He overstayed.
2015-2-11	The Applicant was arrested by the police. He then lodged a non-refoulement claim.
2017-5-31	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’]
2017-8-29	The Applicant appeared before the Board for appeal.
2017-9-8	The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board's decision’]
2017-10-6	The Applicant applied for leave for judicial review.

Respondents

15.  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.

16.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.

17.  The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

18.  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 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

19.  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. On 31 May 2017, the Director refused the Applicant's claim with respect to all the four applicable grounds.

The Board's decision

20.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 29 August 2017.

21.  The Adjudicator found the Applicant only made bare assertions. His allegations were not supported by country-of-origin information ("COI") relating to the land registration system in India. The Adjudicator found the Applicant failed to prove the crux of his claim, i.e. he was the registered owner of the land coveted by TS. The Adjudicator also found a number of inconsistent and unsatisfactory features in the Applicant's allegations. She considered the Applicant's evidence unreliable.[6]

22.  The Adjudicator also noted the Applicant did not claim non-refoulement protection when he arrived in Hong Kong in September 2014. Rather, he then lied to the immigration officer saying he came here to attend a jewellery fair.[7]

23.  The Adjudicator found no evidence that TS was connected with SAD. There was no evidence the Applicant had been inflicted with physical or mental suffering to a minimum level of severity. There was also no evidence of state instigation, consent or acquiescence or the India government was unwilling or unable to afford reasonable state protection to the Applicant. The Adjudicator found no real fear or risk in the Applicant's case.[8]

24.  On 8 September 2017, the Adjudicator refused the applicant’s claim with respect to all the four applicable grounds: persecution risk, BOR2 risk, BOR3 risk and torture risk.

Grounds of judicial review

25.  In Form 86, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 18 above, I shall deal with his application in relation to the Board's decision only because the Director's decision had already been taken on appeal to the Board.

26.  The Applicant complained the Adjudicator failed to make sufficient enquiry; failed to consider he was a claimant who had no or limited option at his disposal to adduce evidence since he had been in custody at the immigration detention centre; failed to give him sufficient chance to arrange relevant evidence.

Court hearing

27.  The Applicant requested a hearing.  It took place on 28 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

28.  The Applicant confirmed all the grounds of judicial review were in the documents. He added he was not feeling well when the Director and the Adjudicator interviewed him in May 2017 and August 2017 respectively. He said he had a fall and went through a head operation in December 2016. He stayed in the hospital for 15-20 days. Then, he had to be on medication. He claimed he was not well mentally though he told the Director and the Adjudicator he could take the interviews. The Applicant now complained that he should have been given more time to handle his claim due to his health problem. He said he had told the Adjudicator he could not express much. Yet, the Adjudicator proceeded with the appeal hearing.

29.  The Applicant could not produce medical proof to support his health allegation.

Discussion

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

31.  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’.[9] 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.” [10]

32.  The Applicant complained the Adjudicator failed to make sufficient enquiry. That was not true. The Adjudicator’s report revealed she had engaged in joint endeavour with the Applicant in the screening process. She made detailed inquiry. The Adjudicator also studied relevant country-of-origin information ("COI") to enable herself to assess the Applicant's case. Her inquiry was sufficient and comprehensive.

33.  The Applicant said the Adjudicator failed to consider he was a claimant who had no or limited option at his disposal to adduce evidence since he had been in custody at the immigration detention centre.

34.  The Applicant was detained after having been arrested for some criminal offences in February 2015. He completed his prison term on 21 April 2017. Then he was transferred to the immigration detention centre.

35.  It was not clear how long the Applicant had stayed in the immigration detention centre. However, even if the Applicant remained in custody when he was interviewed by the Director in May 2017 and then by the Adjudicator in August 2017, there was no evidence to show the Applicant had been deprived of any opportunity to prove his claim to the Director or the Adjudicator. The Applicant's accusation that he had been prejudiced in proving his case to the Director and the Adjudicator was vague. It should also be noted that the Applicant had been represented by the Duty Lawyer Service until the Director's decision dated 31 May 2017.

36.  The Applicant complained the Adjudicator did not give him sufficient chance to arrange relevant evidence. Again, there was no evidence to support his vague accusation.

37.  In court, the Applicant said he was in poor health then. However, he could not provide any medical proof.

38.  The Applicant said that while he told the Adjudicator he could take the interview, he also asked the Adjudicator for more time. There was no such evidence.

39.  The Applicant seemed to suggest that if he could have more time, he would prove his case better. There was no justification of such suggestion. The Applicant failed to show he had been deprived of any chance or denied of any effort to prove his claim.

40.  The other complaints by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She 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 of the Applicant's case. She 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

41.  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 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