RE BRAR JASPREET SINGH

HCAL 37/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 37 OF 2016

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review.

2.  By the Notice of Application for Leave to Apply for Judicial Review dated 3 February 2016, the Applicant seeks to quash the decision made by the Director of Immigration on 16 September 2014 in rejecting the Applicant’s non-refoulement claim (“the Director’s Decision”), and the decision made by Mr William Lam, Deputy Chairperson of the Torture Claims Appeal Board and Adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) on 3 February 2015 in dismissing the Applicant’s appeal and petition (“the Decision”).  The Applicant also applies for extension of time to make the leave application. 

3.  The Applicant is an Indian national who is now 34 years of age.  He left India in May 2014 as he had a land dispute with his paternal uncle (“the Uncle”).  The Applicant’s case is that if he is deported and forced to go back to India, he would be seriously harmed or killed by the Uncle and his gang (including the bribed police in the Ghall Khurd police station) as the Uncle wants to seize the Applicant’s inherited farmland.  He mentions 10 incidents in support of his claim.

4.  The Applicant arrived in Hong Kong on 27 June 2014 and lodged his non-refoulement claim on the same day.  The Applicant’s non-refoulement claim form was submitted to the Immigration Department on 20 August 2014.  Following the screening interview on 1 September 2014, the Applicant’s claim was rejected on 16 September 2014.  The Applicant then filed a Notice of Appeal against the Director’s Decision on 29 September 2014.  The Adjudicator conducted an oral hearing of the appeal on 11 December 2014.  The Applicant gave evidence in the hearing and was cross-examined.  In the Decision handed down on 3 February 2015, the Adjudicator dismissed the appeal.

5.  In the Decision, the Adjudicator did not find the Applicant to be a genuine claimant.  He did not accept the Applicant’s evidence to be true[1]. Further, even if his story were the truth, the Adjudicator found that the facts did not constitute risk of torture under Articles 1 and 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Risk of Torture”)[2], risk of harm under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“Risk of Harm”)[3], and risk of persecution where the principles are found in Article 33 of the 1951 Convention relating to the Status of Refugees although the Convention itself does not apply to Hong Kong (“Risk of Persecution”)[4] .

6.  In my judgment, the present application can be disposed of on one ground alone: there is no basis for the Applicant to challenge the factual findings made by the Adjudicator by way of judicial review.

7.  It is trite law that the court will not generally interfere with the factual findings made by a tribunal by way of judicial review, as the court is not discharging the same function as that of the tribunal.  There may be cases where the court may disturb the factual findings, for example, where there has been a misdirection or mistake of material fact, or where the decision is unsupported by substantial evidence. The court may also interfere if the factual findings are so unreasonable in the Wednesbury sense[5].

8.  In paras 39 to 41 of the Decision, the Adjudicator had provided detailed reasons as to why he found that the Applicant is not a genuine claimant and that his story is incredible.  In reaching such decision, the Adjudicator had not misdirected himself.  Neither can the Applicant complain that there is no substantial evidence to support such factual finding or such finding is so unreasonable, perverse or absurd according to the Wednesbury test which warrants the intervention of the court.  The Adjudicator was certainly entitled to make such finding of fact, and there is no room for the court to intervene by way of judicial review.

9.  In reaching the decision, the Adjudicator had relied on the contents of a record of interview, in which the Applicant mentioned an admission of bribery by 4 police officers.  When cross-examined on the reasonableness of the police officers in making the admissions, the Applicant then denied that he had ever mentioned such admission in the interview.  He blamed it on the mistake of the interpreter and that the interview took place in “late evening”.  One of the reasons given by the Adjudicator in rejecting the Applicant’s evidence is that the interview ended at 4:57 pm which cannot be said to be “late evening”.

10.  Ms Poon, counsel for the Applicant, argues that such “inconsistency” may not necessarily show that the Applicant was lying. But in my judgment, this was certainly a matter which could be taken into account by the Adjudicator in considering the overall credibility of the Applicant’s evidence.  More importantly, the Adjudicator had also given other reasons as to why he disbelieved the Applicant, and Ms Poon cannot provide any convincing argument as to why these reasons are wrong.  To me, the way in which the Adjudicator assessed the evidence cannot be faulted, and he was entitled to make such factual finding about the credibility of the Applicant’s evidence.

11.  Ms Poon also submits that, since there was an issue about interpretation, the Adjudicator should have called the interpreter, the legal representative and even the interviewer to testify in the hearing to clarify the issue.

12.  I disagree.  If the Applicant thought that these persons might assist his claim, he should make an appropriate application before the Adjudicator to arrange them to give evidence in the appeal hearing. The Adjudicator had no such duty to do so.  In particular, the Applicant was legally represented in the hearing, and so he cannot complain that he was not aware of his rights.

13.  In her submission, Ms Poon seems to suggest that, due to the high standards of fairness required for the adjudication of non-refoulement claims, the Adjudicator should be more reluctant to conclude that the Applicant was not telling the truth.  However, the high standards of fairness only requires the Adjudicator and the Director to observe a high standard of procedural fairness in determining the non-refoulement claim.  It does not mean that there should be preference on the part of the Adjudicator in believing the Applicant’s factual allegations.  In my judgment, the Adjudicator had reasons to disbelieve the Applicant.  The high standards of fairness have been observed in this case, and the Adjudicator was entitled to make the relevant factual findings.

14.  In the Decision, the Adjudicator has made it clear that credibility is an independent ground to reject the Applicant’s non-refoulement claim.  As there is no room for the court to disturb the factual findings by the Adjudicator about the credibility of the claim, the Applicant’s application for judicial review cannot possibly succeed.  In such circumstances, there is no need for me to deal with the other issues such as whether the Applicant’s allegations are sufficient to establish the Risk of Torture, the Risk of Harm or the Risk of Persecution for the purpose of the non-refoulement claim, or whether there are good reasons to extend the time for the leave application.

15.  For the above reasons, I dismiss both the leave application and the time-extension application.  I also make an order that the Applicant’s costs to be taxed in accordance with Legal Aid Regulations.