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HCAL 491/2018
[2019] HKCFI 683
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 491 of 2018
BETWEEN
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Harpreet Singh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
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 24 (DOB: 22 September 1994).
2. The Applicant claimed he would be harmed or killed by his uncle Jagdev Singh (“JS”) due to a land dispute. JS was a powerful man. He was a retired army officer and now a police inspector.
3. In 2006, the Applicant’s father died. There was dispute between the Applicant's mother and his grandfather. The grandfather later expelled the Applicant's family.
4. In 2013/2014, the Applicant learnt his grandfather was about to have all the land registered in JS’s name. The Applicant went to the Magistrate’s office to stop the registration. JS became aware of that. He asked the Applicant to withdraw the legal proceedings. The Applicant refused. JS threatened to kill him.
5. JS was successful to have the land registered in his name. The Applicant appealed to the court. JS threatened to kill the Applicant if he would not withdraw his appeal.
6. In early 2014, some police officers went to the Applicant’s home to ask him to withdraw his case. They threatened to put the Applicant in jail.
7. The Applicant did not make any complaint to the authorities. He believed the police officers were acting on JS’s instructions.
8. In May 2014, the Applicant was confronted by JS and some policemen. JS threatened him to withdraw the legal proceedings. The Applicant refused. He was assaulted by JS and the policemen. He was injured but did not report the matter to the police.
9. The Applicant later moved to New Delhi and stayed there for two months.
10. On 3 August 2014, JS and several policemen chased the Applicant in the street and opened fire at him. The Applicant managed to escape. He did not make any complaint to the police but soon left India. He came to Hong Kong as visitor on 7 August 2014 and overstayed from 22 August 2014. The Applicant surrendered to the Immigration Department on 5 November 2014 and raised a non-refoulement claim subsequently.
11. In July 2017, the Applicant submitted further information to the Director. He said the enemies continued to look for him and harassed his family in India. They threatened to kill him unless he would withdraw the court case. His mother and younger brother were injured and had to abandon their home to live elsewhere.
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 Applicants’ claims 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 27 March 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2014-8-7 |
The Applicant left India and entered Hong Kong as visitor. |
| 2014-8-22 |
The Applicant began overstaying in Hong Kong. |
| 2014-11-5 |
The Applicant surrendered to the Immigration Department. |
| 2014-12-30 |
The Applicant raised a non-refoulement claim. |
| 2016-9-2 |
The Director refused the Applicant's claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-6-19 |
The Director invited the Applicant to submit additional facts for consideration of the fourth applicable ground: BOR2 risk. |
| 2017-7-10 |
The Applicant submitted additional facts to the Director through the Duty Lawyer Service. |
| 2017-7-11 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-1-18 |
The Applicant appeared with his lawyer before the Board for appeal. |
| 2018-3-8 |
The Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-27 |
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 Board and the Director as respondents. The Board is the first putative respondent; the Director 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 decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
18. In his decision dated 2 September 2016, the Director did not accept the Applicant faced any torture risk, persecution 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 non-refoulement claim with respect to those three applicable grounds.
19. In his further decision dated 11 July 2017, the Director refused the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed him on 18 January 2018. The Applicant was still represented by the Duty Lawyer Service.
21. The Adjudicator found the Applicant's allegation was vague and bare assertion. There was no supporting evidence. The Adjudicator noted the Applicant did not make any complaint to the India authorities but took the trouble to travel to Hong Kong. The Applicant alleged he came here for protection. He arrived in Hong Kong in early August 2014. Yet, he did not raise his non-refoulement claim until late December 2014. The Adjudicator found the Applicant’s explanation unreliable.
22. Even on the Applicant's account of events, the Adjudicator considered JS though a police inspector was only acting in his personal capacity. There was no state instigation or acquiescence. The Applicant was not targeted by the India state. The Adjudicator also noted the Applicant had not been inflicted with mental or physical suffering to a minimum level of severity. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator studied relevant country-of-origin information ("COI"). He considered reasonable state protection was available to the Applicant in any event. The Adjudicator did not accept JS would track the Applicant down all over India, so internal relocation was viable for the Applicant.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk and BOR3 risk. On 8 March 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. In his affirmation, the Applicant made complaints against the Director and the Adjudicator.
25. As said in paragraph 17 above, I shall deal with the current application in relation to the Board's decision only as the Director's decisions had gone on appeal to the Board for rehearing.
26. The Applicant said the Adjudicator failed to consider properly the issues of state protection and state acquiescence; failed to conduct sufficient and independent inquiry or critical analysis of COI; failed to justify why he preferred certain COI; failed to consider supporting documents/evidence; cherry-picked information; took into account irrelevant consideration including the manner of his latest departure from India; failed to consider his psychological strain arising from the threats; failed to give sufficient reason for his decision (in particular failed to give reason for his decision on BOR3 risk).
Court hearing
27. The hearing took place on 10 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
28. The Applicant said a friend 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 those grounds.
29. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
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’.[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]
32. The Applicant complained the Adjudicator failed to give sufficient reasons for his decision (in particular failed to give reason for his decision on BOR3 risk). That was not true. The Adjudicator’s decision must be read as a whole. The Adjudicator gave sufficient and clear reasons for his determination with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
33. The Adjudicator noted the Applicant had not made any report to the India authorities. There was no evidence to show the state knew of the Applicant’s complained situation. The Adjudicator was right to find there was no state acquiescence.
34. The Adjudicator studied relevant COI. He considered reasonable state protection was available to the Applicant in any event. There was no evidence the Adjudicator failed to conduct sufficient and independent inquiry or critical analysis of COI.
35. The Applicant complained the Adjudicator failed to justify why he preferred certain COI. The Adjudicator need not state his mental process of decision. He had given sufficient and clear reasons for his decision on all relevant issues. There was no evidence of cherry-picking information.
36. The Applicant complained the Adjudicator took into account irrelevant consideration including the manner of his latest departure from India. The Adjudicator did not.
37. The Applicant also complained the Adjudicator failed to consider his psychological strain arising from the threats. That was not a real issue as the Adjudicator did not believe the Applicant's’ claim.
38. 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. 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. He considered the Applicant’s claim 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
39. 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
Harpreet 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
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4755/16/9/134/IN1030
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 360/15 & RBCZ 9002620/17 (formerly RBCZ 100/15)
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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