SINGH ROHIT KUMAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL2548/2018

[2019] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2548 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is an Indian national. He arrived in Hong Kong on 16 April 2015 as a visitor and was permitted to stay until 20 April 2015. He overstayed and surrendered to the Immigration Department on 27 April 2015. On 15 July 2015, he lodged a non‑refoulement claim. However, he withdrew his application by a letter on 18 February 2016 as he said that he was safe to return to India. He was informed by the Immigration Department that it would take no further action on his application. By way of another letter on 23 March 2016, he re-opened his non-refoulement claim, which was entertained by the Director.

3.  His reason for his application is that he would be killed if he returned to India because the family of his girlfriend, Iram Wahaj, was very angry at him for having made her pregnant.

4.  In his statements given to the Director, he claimed that he met Iram at his working place where they worked together and they fell in love with each other. They lived together. But they kept their relationship from their respective families. In September 2014, it was discovered that Iram was pregnant. He is Hindu whereas Iram is Muslim. They are prohibited from getting married. Irami’s family is rich with wide connection with the ruling party. His family is poor. He did not marry Irami and she returned to her family where her brother got knowledge of their relationship and was furious about it. He told her mother about their relationship. In January 2015, he met a group of five people. They identified him and beat him up. His lips and knees were swollen. He did not report it to police. In February 2015, he met another group of five people in a car park. They identified him and attempted to hit him. He managed to escape. He moved to live in other places in order to avoid those people. He guessed they were people of Irami’s brother. He also received phone calls threatening that they would kill him. He guessed he was Iram’s brother. He was scared and he came to Hong Kong.

5.  At one stage, he was told by his friends that Iram’s brother was no long there to locate him as Iram was going to marry. Therefore, he withdrew his claim. Subsequently, he was informed that Iram had not married and her brother was still there looking for him. That is why he applied to re-open his claim.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

7.  By Notice of Decision dated 11 August 2016 (“the Director’s Decision”) and Notice of Further Decision dated 18 July 2017, collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was not substantiated.

The Board

8.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 7 September 2017.

9.  By Decision dated 18 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s case and the Adjudicator had asked him questions in relation to his evidence on the facts of the case given to the Director. The Adjudicator asked him to explain why he had given different versions of the events given to the Director in relation to the time he discovered Iram had got pregnant; whether she was really carrying her baby and what happened to the baby; whether her mother knew of their relationship; whether he had seen Iram’s brother; why he gave different versions in relation to the five people he met on the street and in the car park. As a result of her assessment of his evidence, the Adjudicator had come to the following conclusion of the facts:

“55. Taking into account of the evidence, I do not find the Appellant to be a credible witness. I find that the Appellant has fabricated and concocted his evidence to advance a claim for non-refoulment protection and that he would therefore not be at risk of harm from the family of his former girlfriend if he returns to India.”

11.  In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

12.  In his affirmation in support of his application dated 13 November 2018, the applicant relied upon the following grounds:

(1) he did not have legal representation for his BOR 2 risk assessment;

(2) he was not provided with translation service at the Duty Lawyer Service and no assistance in completing the Notice of Appeal or on the Hearing Bundle;

(3) the Board’s determination was not translated to him;

(4) the Board’s Decision did not comply with the judgment of the case of AM v Director of Immigration & Another (unreported, HCAL 102/2012, McWalters J., 20 November 2013) setting out (a) what evidence she [he] accepted; (b) what evidence she [he] rejected, (c) whether there was any evidence as to which she [he] could not make her [his] mind whether or not she [he] would accept, and (d) what, if any, evidence she [he] regarded irrelevant.

DISCUSSION

The Director’s Decision

13.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

14.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. He said that he could read English and he understood the Director’s Decision and the Board’s Decision. He considered that he had had a fair hearing before the Board.

16.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

17.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 held:

“The Board’s decision is final.” [42]

“…To the extent that this depended on an assessment of the applicant’s credibility the board was perfectly entitled to come to the adverse conclusion that it did, namely that the applicant was a liar who was seeking by his falsehoods to advance his interests.” [47]

18.  The Court of Appeal had also held in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that the applicant does not have the absolute right of free legal representation at every stage of the proceedings as he has already had free legal representation at the initial screening stage.

19.  Ground (1) therefore fails.

20.  Grounds (2) and (3) do not sustain as the applicant said that he could understand English and he could read the Board’s Decision himself.

21.  Ground (4) cannot sustain because the judgment is meant to give guidelines to the presiding Adjudicator the proper approach in the assessment of the evidence before the Board. The Court will not apply such guidelines mechanistically to require the Adjudicator to state them in words in the Board’s Decision. It is the court’s discretion as to what evidence should be admitted and what evidence should be rejected. In the exercise of the court’s discretion, the Court of Appeal had stated in the case of The Decurion [2012] 1 HKLRD 1063 at §11 that “a rigid mechanistic approach is not appropriate.”^[1] What matters is whether the Adjudicator has, in substance, complied with those guidelines in the appeal hearing. Looking at the Board’s Decision as a whole, it is quite clear that the Adjudicator had set out the reasons for her to find the facts above. Applying the test of rigorous examination and anxious scrutiny to the Board’s Decision, I find nothing amiss in the Adjudicator’s finding of the facts. I had put her findings to the applicant and asked for his comments. He said that he had no comments.

22.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

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