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HCAL731/2018
[2019] HKCFI 370
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 731 of 2018
BETWEEN
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Narendra 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 46 (DOB: 12 June 1972).
2. The Applicant claimed he would be harmed or killed by two men of the Bharatiya Janata Party (“BJP”) and the Shiromani Akali Dal (“SAD”) because he witnessed the two men murder someone.
3. The Applicant said he was a supporter of the Congress Party (“CP”). In 2007, he attended a rally organised by CP. A number of BJP and SAD people came to cause disturbance. A fight broke out. The Applicant saw some BJP and SAD people attack a CP supporter Harjit Singh, who later died. The Applicant was the only witness of the killing.
4. A few days later, the Applicant was asked to go to the police station to identify some suspects. He pointed out two suspects. They were Balkar Singh and Sardar Singh. The two were then remanded by the police.
5. On the following day, the Applicant received a phone call from an unknown person. That person threatened the Applicant that if he gave a statement or testified against Balkar Singh and Sardar Singh, he would be killed.
6. The Applicant did not report the matter to the police because BJP and SAD were in power. The Applicant believed the police would side with BJP and SAD.
7. The Applicant continued to get threatening phone calls from BJP and SAD people. He worried he would be harmed or even killed by them.
8. One day, when the Applicant was on his way to the court he was attacked by 5 to 6 men. They said they would kill him to prevent him from giving evidence. The Applicant managed to escape and he was only slightly injured. He immediately took a train to New Delhi to stay with his sister.
9. The Applicant's wife told the Applicant on the phone that the BJP and SAD people were looking for him. They threatened to kill the Applicant if he came back.
10. The Applicant also learnt Balkar Singh and Sardar Singh had been released by the court.
11. A year later, the Applicant returned home because his wife said the BJP and SAD people had stopped coming in the last 2 to 3 months.
12. However, those people reappeared a month later. The Applicant left for New Delhi again. He stayed there for two years.
13. In 2010, the Applicant returned home. A month later, 5 to 6 unknown men confronted him and tried to kill him. Some people came to his rescue.
14. The Applicant left for New Delhi for the third time. This time, he brought his wife and children with him. He still got threatening phone calls. The caller said he knew where the Applicant was staying. The Applicant then moved to Kalkaji and stayed there for some months. A friend told him he should leave India.
15. On 15 October 2011, the Applicant left India for Thailand. There he stayed for around 15 days. Then he went to Malaysia and stayed there for about 9 days. He finally arrived in Hong Kong on 11 November 2011. The Applicant did not seek protection in Thailand and Malaysia because his agent told him that he could only be protected in Hong Kong. However, the Applicant did not seek asylum when he arrived in Hong Kong. He feared the Hong Kong Government would detain him. The Applicant was arrested by the police in July 2013 after he had overstayed here for 19 months. He then sought asylum with UNHCR. His case was referred to the Immigration Department. The Applicant finally lodged a non-refoulement claim in April 2014.
16. The Applicant learned from his wife in India that his enemies were still looking for him. He thought the India authorities would not protect him because BJP was in power.
17. The Applicant said his enemies could track him down anywhere in India so internal relocation was not viable.
18. 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].
19. On 26 April 2018, the Applicant applied for leave for judicial review.
Timeline
20. Things happened in this order: –
| 2011-11-11 |
The Applicant last arrived in Hong Kong as visitor. He was allowed to stay until 25 November 2011. |
| 2011-11-26 |
The Applicant began overstaying in Hong Kong. |
| 2011-11-29 |
The Applicant applied for extension of stay. His application was refused. He had to leave on or before 1 December 2011. |
| 2011-12-2 |
The Applicant overstayed in Hong Kong again. |
| 2013-7-8 |
The Applicant was arrested by the police. |
| 2013-7-23 |
The Applicant sought asylum with UNHCR. |
| 2014-4-17 |
The Applicant raised a non-refoulement claim. |
| 2017-2-28 |
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”] |
| 2018-2-9 |
The Applicant appeared before the Board for appeal. |
| 2018-4-16 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-26 |
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 Board and the Director as respondents. The Board is the first putative respondent; the Director 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. On 28 February 2017, the Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
25. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 9 February 2018.
26. The Adjudicator considered that it would not be difficult for the Applicant to produce some evidence of the alleged murder of Harjit Singh. Yet, there was no evidence to support the Applicant's bare assertion. The Adjudicator found there were unconvincing and inconsistent features in the Applicant’s allegations. He found the Applicant an untruthful witness, who had fabricated his claim.
27. The Adjudicator considered the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 16 April 2018, he refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
28. 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 already gone on appeal to the Board for rehearing.
29. The Applicant complained he did not have legal advice and language assistance to help him with the appeal. He complained the Adjudicator’s decision was unfair and irrational.
Court hearing
30. The hearing took place on 1 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
31. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He had nothing to add to those grounds.
32. The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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]
35. The Applicant complained he did not have legal advice to help him for the appeal.
36. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 28 February 2017. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
37. The Applicant complained he did not have language assistance to help him with his appeal to the Board.
38. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
39. The Applicant complained the Adjudicator’s decision was unfair and irrational.
40. The Adjudicator considered it would not be difficult for the Applicant to produce some evidence of the alleged murder of Harjit Singh. Yet, there was no evidence to support the Applicant's bare assertion. The Adjudicator studied the Applicant's case in detail and referred to relevant country-of-origin information (“COI”). He found there were unconvincing and inconsistent features in the Applicant’s allegations. The Adjudicator concluded the Applicant was an untruthful witness and his claim was a fabricated one. The Applicant had the burden to prove he faced risk that warranted non-refoulement. He failed to do so. The Adjudicator’s finding, conclusion and decision were not irrational.
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. 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. None of the Applicant's complaints is substantiated.
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.
Dated 20th day of February 2019
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(Alan Ngan)
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 his 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 20/2/2019
Narendra 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 20/2/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6505/17/3/160/IN1297
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3235/16 (formerly RBCZ 3000744/14)
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).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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