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HCAL843/2018
[2019] HKCFI 872
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 843 of 2018
BETWEEN
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Darshan 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 62 (DOB: 17 October 1956).
2. The Applicant claimed he would be harmed or killed by two moneylenders Pritam Singh and Gurcharan Singh (“PS” & “GS”) because he refused to sell his land to them. The two moneylenders were brothers. They were influential and had strong ties with the Shiromani Akali Dal (“SAD”), which was the ruling party in Punjab. They had connection with the police.
3. PS and GS had acquired some land adjacent to the Applicant's land. They exerted pressure on the Applicant by removing the water pumps from the land. That affected the living of the Applicant.
4. In mid-2013, PS and GS approached the Applicant with some armed men. They said they would harm the Applicant if he refused to sell his land to them.
5. The Applicant did not make any report to the police as he considered it was only a verbal threat.
6. Two week later, PS and GS came again with some armed men. They assaulted the Applicant. Some farmers nearby came to intervene. PS and GS told the Applicant that they would not spare him if he refused to sell his land.
7. The Applicant was injured. This time, he complained to the police. However, the reporting clerk refused to register his complaint. He was not allowed to reach the more senior officers. The Applicant believed that had to do with the influence of PS and GS due to their affiliation with SAD and the police.
8. In September 2013, PS and GS came to the Applicant’s house. They shouted that they would kill the Applicant. The Applicant left his house secretly. He went to stay with his parents-in-law. The Applicant’s wife, however, stayed behind in the house. The men threatened her that they would kill the Applicant if he refused to sell his land.
9. The Applicant learned his enemies were continuously looking for him. On 8 October 2013, he left India for Hong Kong. He arrived in Hong Kong 9 October 2013 as visitor. He overstayed from 24 October 2013. The Applicant was arrested on 2 December 2013. He raised a torture claim on 6 December 2013.
10. 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].
11. On 15 May 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2013-10-9 |
The Applicant entered Hong Kong as visitor from India. He was allowed to stay until 23 October 2013. |
| 2013-10-24 |
The Applicant began overstaying in Hong Kong. |
| 2013-12-2 |
The Applicant was arrested by the police. |
| 2013-12-6 |
The Applicant raised a torture claim. |
| 2016-1-7 |
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”] |
| 2017-1-11 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-1-25 |
The Applicant failed to supply additional facts by the deadline or thereafter. |
| 2017-2-1 |
The Director refused the Applicant’s claim with respect to BOR2 risk. [“the Director's further decision”] |
| 2017-4-3 |
The Applicant appeared before the Board for appeal. |
| 2018-4-25 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-15 |
The Applicant applied for leave for judicial review. |
Respondents
13. 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.
14. 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.
15. 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
16. In his decision dated 7 January 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 claim with respect to those three applicable grounds.
17. In his further decision dated 1 February 2017, the Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 3 April 2017.
19. The Adjudicator did not reject the Applicant's account of events. He, however, found the complained situation was only a private dispute. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence of state involvement or acquiescence. The Applicant had not been inflicted with ill-treatment to the minimum level of severity. The Adjudicator further found there was no evidence that PS and GS were serious about killing the Applicant or that they were influential as the Applicant suggested. The Adjudicator studied relevant country-of-origin information ("COI"). He concluded reasonable state protection was available to the Applicant. The Adjudicator was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 25 April 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
20. The Applicant complained his claim was not fairly determined by the Director and the Adjudicator. He disagreed that state protection was available in India.
21. The Applicant also complained he was not provided with proper legal and language assistance. He said the Director should refer his case back to the Duty Lawyer Service when BOR2 risk was considered.
Court hearing
22. The hearing took place on 24 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
23. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.
24. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his claim.
Discussion
25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
26. 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]
27. The Applicant complained he was not provided with proper legal and language assistance. He said the Director should refer his case back to the Duty Lawyer Service when BOR2 risk was considered.
28. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 7 January 2016. There was no evidence he reapplied for legal assistance from the Duty Lawyer Service afterwards.
29. The Applicant could not sit back and expect the Director to refer his case to the Duty Lawyer Service again for legal representation. He did not respond to the Director's request for further information for the consideration of BOR2 risk. The Director could not be expected to request the Duty Lawyer Service to act for the Applicant in such circumstance.
30. 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.
31. The Applicant raised his language problem. In the current application, a friend helped him 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 being represented by Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
32. The Applicant complained his claim was not fairly determined by the Director and the Adjudicator. The Applicant failed to specify any unfairness apart from his unjustified complaint of insufficient legal and language assistance.
33. The Applicant disagreed that state protection was available in India. The Adjudicator studied relevant COI before he reached that conclusion. The Applicant failed to point out any information was inaccurate or unreliable. The Adjudicator’s finding was not Wednesbury unreasonable.
34. 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
35. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 4th day of April 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 4/4/2019
Darshan 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 4/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 2962/16/1/85/IN672
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1346/15 (formerly RBCZ 9000044/17 & RBCZ 997/14)
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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