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HCAL669/2018
[2019] HKCFI 1903
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 669 of 2018
BETWEEN
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Satinder Pal Singh |
Applicant |
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Jane Curzon Lo, Esq. |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 39 (DOB: 22 December 1979).
2. The Applicant claimed he would be harmed or killed by his uncle Mohinder due to a property dispute. Mohinder served in the army. He was powerful because he knew people in the army and the police. His son Shunty also served in the army.
3. The Applicant’s grandfather died in 2009. He left a house to the Applicant. Mohinder wanted the house. He asked the Applicant to transfer the property to him. The Applicant refused. They fought with each other. Mohinder threatened to kill the Applicant.
4. The dispute was taken to the Village Council. The Council ruled in favour of the Applicant.
5. A week later, Mohinder and Shunty brought some men to the Applicant's house. An argument broke out. Mohinder injured the Applicant with a sword.
6. A report was made to the police. Mohinder and one of the attackers were arrested but they were soon released.
7. A month later, Mohinder and his brother-in-law assaulted the Applicant. Some people came to the Applicant's rescue. Mohinder again threatened to kill the Applicant.
8. The Applicant feared for his safety. He left India on 9 August 2009. He first went to Bangkok. Then he went to Macau and China, where he stayed for about 14 months before he sneaked into Hong Kong on 5 October 2010. He was arrested by the police on 6 October 2010.
9. The Applicant lodged a torture claim[1] on 9 October 2010. The torture claim was refused by the Director of Immigration (“the Director”) on 29 February 2012. There was no evidence the Applicant had appealed against the Director's 2012 decision.
10. The Applicant raised a non-refoulement claim on 9 March 2015.
11. In the ensuing two-tier screening process, 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 the remaining three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].
12. On 18 April 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2009-8-9 |
The Applicant left India for Bangkok. He then went to Macau and China, where he stayed for about 14 months. |
| 2010-10-5 |
The Applicant sneaked into Hong Kong. He was arrested on the next day. |
| 2010-10-9 |
The Applicant lodged a torture claim. |
| 2012-2-29 |
The Director refused by the Applicant's torture claim. [“the Director's 2012 decision”] There was no appeal. |
| 2015-3-9 |
The Applicant raised a non-refoulement claim. |
| 2016-8-23 |
The Director refused the Applicant’s non-refoulement claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Director’s 2016 decision”] |
| 2017-7-4 |
The Director invited the Applicant to submit additional facts for the consideration of the last applicable ground: BOR2 risk. |
| 2017-7-18 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-20 |
The Director refused the Applicant’s non-refoulement claim with respect to BOR2 risk. [“the Director’s 2017 decision”] |
| 2017-11-23 |
The Applicant appeared before the Board for appeal. |
| 2018-1-26 |
The Board refused the Applicant's non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board’s decision”] |
| 2018-4-18 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
14. 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 complaint on a rehearing basis.
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]
16. In Form 86, the Applicant named the Adjudicator as respondent and the Director as interested party. The Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
17. In his decision dated 29 February 2012, the Director did not accept the Applicant faced any torture risk. [“the Director's 2012 decision”]
18. In his decision dated 23 August 2016, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. [“the Director's 2016 decision”]
19. In his decision dated 20 July 2017, the Director did not accept the Applicant faced any BOR2 risk. [“the Director's 2017 decision”]
The Board’s decision
20. The Applicant did not appeal against the Director's 2012 decision relating to torture risk. He only appealed against the Director's 2016 decision and 2017 decision.
21. The Adjudicator interviewed the Applicant on 23 November 2017.
22. While the Adjudicator accepted there was a dispute between the Applicant and Mohinder over the house, she found the risk of the Applicant’s being tortured or killed by Mohinder was low. Many years had passed since the dispute arose in 2009. The Applicant's family were able to live in peace in India. The Adjudicator considered the Applicant could also do that. The Adjudicator found reasonable state protection and internal relocation were available to the Applicant in any event.
23. On 26 January 2018, the Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
24. The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
25. The Applicant accused the Adjudicator misdirected herself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
26. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.
27. The Applicant also complained he was not given an oral hearing by the Adjudicator.
28. The Applicant further said the appeal bundle was only given to him a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
29. The Applicant last complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
30. The hearing took place on 19 September 2018. The Applicant was in person. A Hindi interpreter provided service in court.
31. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.
32. 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
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. It was wrong for the Applicant to say the Adjudicator had not given him an oral hearing. He appeared before the Adjudicator on 23 November 2017 and gave evidence.
36. The Applicant complained there was a lack of or insufficient legal representation.
37. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 23 August 2016.
38. 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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
39. The Applicant complained there were failures by the assigned duty lawyer. He failed to specify what the failures were.
40. The Applicant complained there was a lack of language assistance.
41. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
42. In any event, 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 a qualified interpreter before the Adjudicator. The Applicant had much exaggerated his language problem.
43. The Applicant complained he received the appeal bundle shortly before the Board hearing.
44. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
45. The Applicant said he received the bundle on 16 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 23 November 2017. The bundle was served on the Applicant in time.
46. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.
47. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
48. The Applicant said in his affirmation that he answered all the questions honestly.[12] That meant he knew what was asked and how to answer. He was not confused.
49. The Applicant failed to prove there existed in India a consistent pattern of gross, flagrant or mass violations of human rights and how it was relevant to his own case. He also failed to prove there was any necessity for the Adjudicator to call for psychological or psychiatric reports.
50. There was no state acquiescence. The Adjudicator considered updated and relevant COI. She concluded there was sufficient state protection.
51. There was no evidence the Adjudicator took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
52. There was no evidence the Adjudicator cherry-picked information.
53. The Adjudicator did not misdirect herself in law. Nor did she apply the wrong standard of proof.
54. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She 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. She 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
55. 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 2nd day of August 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
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 2/8/2019
Satinder Pal 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 2/8/2019
Jane Curzon Lo, Esq.
Putative Respondent’s ref. no.:
USM 4673/16/9/52/IN1019
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 95/16 & RBCZ 9002626/17 (formerly RBCZ 13797/15)
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).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 11 on page 4.
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