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HCAL794/2017
[2019] HKCFI 686
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 794 of 2017
BETWEEN
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Bhupinder Singh |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Betty Kwan, Esq. |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
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 33 (DOB: 5 April 1985).
2. The Applicant said he would be harmed or killed by the family of his girlfriend Lakhvir Kaur (“LK”) because they objected to their relationship.
3. The Applicant and LK were primary schoolmates and neighbours. They started dating in 2012 after they had grown up. The Applicant wanted to marry LK but the girl belonged to a higher caste. Her family was rich and influential. Her uncle was Simarjit Singh, who had an uncle called Inderjit Singh Zira. Inderjit Singh Zira was the president of the Shiromani Akali Dal (“SAD”).
4. In February 2013, Simarjit Singh found out the pair were dating. The Applicant was beaten up by Simarjit Singh and LK’s maternal grandfather. They said they would not accept the relationship between the Applicant and LK. They threatened to kill the Applicant if he continued to see the girl. The Applicant was only released after he had promised not to see LK.
5. Nevertheless, the Applicant continued to date LK. Simarjit Singh found that out and assaulted the Applicant with others. He threatened to kill the Applicant if he saw LK again.
6. The Applicant did not report the matter to the police because he did not want to shame the two families.
7. In April/May 2013, the Applicant left home to avoid LK’s family. He learnt from his brother that Simarjit Singh threatened to kill him if he returned.
8. The Applicant had a friend in Hong Kong so he decided to come here. He entered Hong Kong on 7 October 2013 as visitor. He overstayed from 22 October 2013. The Applicant was arrested on 1 November 2013. He subsequently raised a non-refoulement claim.
9. The Applicant maintained contact with his family. They asked him not to go back. The Applicant believed there was still risk in India.
10. The Applicant said the India police were corrupt. SAD was powerful and had influence on the police. His relationship with LK was forbidden. The Applicant did not think state protection was available to him.
11. The Applicant said internal relocation was not viable because his enemies could find him in the country.
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 20 Ocotber 2017, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| Sept 2013 |
The Applicant left India for China. |
| 2013-10-7 |
The Applicant arrived in Hong Kong as visitor. He was permitted to stay till 21 October 2013. |
| 2013-10-22 |
The Applicant began overstaying in Hong Kong. |
| 2013-11-1 |
The Applicant was arrested by the police. |
| 2013-11-3 |
The Applicant lodged a non-refoulement claim. |
| 2017-1-11 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision’] |
| 2017-9-13 |
The Applicant appeared before the Board for appeal. |
| 2017-9-29 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board's decision’] |
| 2017-10-20 |
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. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
17. 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
18. In his decision dated 11 January 2017, 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. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed him on 13 September 2017.
20. The Adjudicator found the Applicant's allegation that LK was from a rich family unconvincing. It was illogical that LK’s relatives did not kill or severely injure the Applicant after finding out their forbidden love. The Adjudicator checked relevant country-of-origin information ("COI"). She found that Inderjit Singh Zira was not a president of SAD. The Applicant denied to the Adjudicator that he had previously said so. He said he had only described Inderjt Singh Zira as ‘the main person’ of SAD. The Adjudicator did not accept the Applicant's explanation. She found the Applicant's claim incredible.
21. The Adjudicator found the Applicant was not targeted by the India state. There was no evidence of state instigation or acquiescence. The Applicant failed to show the state was unwilling or unable to offer protection to him if he was really at risk. He had not complained to the India authorities. The Applicant also failed to prove he had been inflicted with ill-treatment to a minimum level of severity. His complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence that a consistent pattern of gross, flagrant or mass violations of human rights existed in India.
22. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 29 September 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
23. The Applicant complained against the Director and the Adjudicator. As said in paragraph 17 above, I shall deal with his application in relation to the Board's decision only because the Director's decision had been taken on appeal to the Board for rehearing.
24. The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to consider that he had limited or no option to adduce proof. He said he had been detained at the Immigration Detention Centre in Tuen Mun. The Applicant also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence.
Court hearing
25. The hearing was scheduled for 10 August 2018. The Applicant was absent. The interpreter tried to reach him on the phone by the two numbers he had left on record but to no avail.
Discussion
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
28. The Applicant complained the Adjudicator failed to consider he had limited or no option to adduce proof. He said he had been detained at the Immigration Detention Centre in Tuen Mun. He also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence.
29. According to paragraph 10 of the Director’s decision dated 11 January 2017, the Applicant was arrested by the police for using an identity card relating to another person’ and illegal employment. He was sentenced to 15 months ‘imprisonment on 26 Ocotber 2016. I accept the Applicant was in custody when the Adjudicator interviewed him on 13 September 2017. However, there was no evidence that he was deprived of any chance to present his case as much as he could. There was no evidence he was prevented to arrange his evidence or proof. There was no evidence he complained to the Adjudicator that he had been prejudiced to any extent. There was also no evidence he had applied for adjournment before the Adjudicator for cause.
30. The Applicant complained the Adjudicator failed to make sufficient enquiry. However, he failed to give specifics.
31. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. The Adjudicator 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. 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
32. 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.
Dated the 19th day of March 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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)).
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Sent to the Applicant on 19/3/2019
Bhupinder Singh
Applicant’s ref. no:
Nil. |
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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 19/3/2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2735/16 (formerly RBCZ 780/14)
Betty Kwan, Esq.
2nd Putative Respondent’s ref. no.:
USM 5910/17/1/194/IN1214
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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