SATNAM SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 236/2018

[2020] HKCFI 263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 236 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of India who arrived in Hong Kong on 19 March 2013 with permission to remain as a visitor up to 2 April 2013 when he did not depart and instead overstayed and was arrested by police on 30 July 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbours for having witnessed a murder.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bahadur, Gurdaspur, Punjab, India. After leaving school he worked as a driver and also helped out in his father’s farming.

3.  One day in March 2012 while working in his father’s farmland, he saw his neighbours JS and SS and their men fighting each other, during which JS’s son was killed. When some of the men saw the Applicant, they chased after him but the Applicant managed to make his escape and fled to hide in his aunt’s place in the neighbouring village.

4.  Later when the Applicant was told by his parents that both JS and SS had come to his home looking for him, with JS asking him to give evidence in court about the murder,while SS threatened that he should keep his mouth shut of what he saw of the murder or else he would be killed.

5.  As a result the Applicant fled to various places including Delhi where he was advised by his friends to leave India to save his life, and so on 19 March 2013 he departed for Hong Kong where he overstayed, and upon his arrest by the police, he raised his non- refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 12 February 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the HongKong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his neighbours upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that the Applicant was a witness to a murder and in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to,and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his neighbours to locate him.

8.  By a Notice of Further Decision dated 23 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicablegrounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 23 February 2016, and for which he attended an oral hearing on 15 December 2016 before the Board during which he however refused to answer any questions raised of his claim by the adjudicator for the Board.  On 7 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  On 28 April 2017 the Applicant filed his Form 86 under HCAL 164/2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  that he was not provided with legal representation for his BOR 2 risk before the Director or for his appeal before the Board; and

 (2)  that he was not given language assistance for his BOR 2 risk before the Director.

11.  On 5 January 2018 his application was refused by Deputy High Court Judge Woodcock upon finding none of his grounds reasonably arguable, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions or any failure on their part to apply high standards of fairness in their determinationof his claim, and that there was no reasonable prospect of success in his intended application.

12.  The Applicant never brought any appeal against that decision, but instead he on 13 February 2018 filed another Form 86 in these proceedings for leave to apply for judicial review again of the Board’s decision, and put forward similar grounds or complaints as before of not being provided with legal representation or language assistance for his appeal before the Board.

13.  In the premises clearly the principle of res judicata applies, and it is an abuse of process for the Applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 164/2017, and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

14.  For these reasons this second application for judicial review of the Board’s decision by the Applicant is hereby struck out and dismissed.

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