AMANDEEP v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL689/2017

[2018] HKCFI 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 689 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is an India national. He is now aged 20 (DOB: 18 December 1997).

2.  The Applicant claimed he belonged to the Congress Party in India. He feared he would be harmed or killed by Manak Singh (“Manak”), Balbir Chand, Sohan Singh Thandal (“Thandal”) and other supporters of Shiromani Akali Dal (“SAD”). 

3.  The Applicant said he was a supporter of the Congress party since 2014. He participated in the party’s activities. In his village election in late 2014, the enemies from SAD stopped him from putting up posters. They also asked him to quit the Congress party to join SAD. The Applicant refused. The SAD men said they would give him time to think about that. A few days later, when the Applicant refused the SAD men, he was assaulted and got hurt. The assailants even threatened to kill him. The Applicant reported the matter to the local police. No concrete action was taken against the SAD men.

4.  Manak was elected in the village election. He and others asked the Applicant to switch from the Congress Party to SAD. The Applicant refused and was assaulted again. He was injured. The Applicant reported to a higher authority, i.e., the Hoshiarpur Police Station. The deputy superintendent there just said he would look into the matter. No formal report was registered. The Applicant believed that Manak and Thandal had influenced the police. The Applicant did not complain to higher authorities then.

5.  The Applicant said SAD was still the ruling party in his living area in India. That party was actually influential in the whole country. The Applicant thought internal relocation was not possible for him. He also feared the police would arrest him because his enemies had fabricated a drugs case against him. The Applicant believed that he would not get any assistance from the police because SAD was the ruling party in Punjab.

6.  On the advice of his father, the Applicant moved to live elsewhere in India. However, Manak and his party came to know of his whereabouts. They went to find him. The Applicant managed to escape. He fled to another place but some unknown people managed to find him too. They forced into the Applicant’s place. The Applicant managed to escape again. He moved to another place and later went to Delhi in July 2015. His father informed him on the phone that Manak and his company had fabricated a drugs case against him. The police were looking for him.

7.  The Applicant finally left India by air on 2 September 2015. He went to China first, waiting to go further to Hong Kong.

8.  In the month of September 2015, the Applicant made attempts to enter Hong Kong but was refused permission to land twice. He was sent back to China on both occasions. On 25 September 2015, the Applicant came to Hong Kong for the third time. He was refused permission to land again but then he raised a non-refoulement claim.

9.  In the ensuing two-tier screening process (“the Unified Screening Mechanism”), 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 (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

10.  On 27 September 2017, the Applicant applied for leave for judicial review.

Chronology of events

11.  Things happened in this order: –

2015-9-2	The Applicant left India for China.
2015-9-9	The Applicant went to Hong Kong from China but was refused permission to enter. He was sent back to China.
2015-9-21	The Applicant went to Hong Kong again from China. He was sent back to China again.
2015-9-25	The Applicant went to Hong Kong for the third time from China. He was refused to land but managed to raise a non-refoulement claim.
2016-1-12 &     2016-2-4	The Director held a screening interview with the Applicant.
2016-4-13	The Director refused the Applicant’s claim with respect to three applicable grounds: (i) risk of torture, (ii) risk of persecution and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk).
2017-6-14	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-6-28	The Applicant failed to submit additional facts by deadline or thereafter.
2017-6-29	The Director refused the Applicant’s claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk).
2017-8-15	The Applicant appeared before the Board for appeal.
2017-9-15	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds.
2017-9-27	The Applicant applied for leave for judicial review.

Respondents

12.  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.

13.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Board as respondents. 

14.  In support of his application, the Applicant submitted a 7-page affirmation [Folio 2] making allegations against the Director and the Board.

15.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

16.  In the present case, the Director's decision dated 13 April 2016 was more than three months old by the time the Applicant filed his current application on 27 September 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 15 September 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the said Director's decision albeit late on 27 September 2017; the application against the Director's further decision dated 29 June 2017 and Board's decision was made within time.

17.  As such, there are two respondents in the current application: the Director is the first putative respondent; the Board is the second putative respondent.

Director of Immigration (the Director)

18.  In the Director’s decision dated 13 April 2016, the immigration officer found the Applicant’s feared risk was low. He considered the Applicant’s allegation that he was targeted by the SAD men was far-fetched. There was no evidence to support his bare assertion.

19.  The officer did not find the SAD men had inflicted ill-treatment (whether physical or mental) on the Applicant to a minimum level of severity to constitute BOR3 risk. Such risk was assessed to be unlikely. The officer also found that the Applicant’s fear of persecution risk was not well-founded; there was no persecution risk. The officer further found there were no substantial grounds for believing the Applicant would be subjected to torture upon his return to India. The claimed risk was small. It was not instigated by the state or government officials. There was no state acquiescence. The officer did not accept that the police would harm the Applicant or the Applicant would be denied of justice in India. The officer concluded there were no substantial grounds for believing the Applicant would face any real, personal or foreseeable torture risk.  

20.  The officer found that there were reasonable state protection and internal relocation alternatives available to the Applicant in India. Thus even if the Applicant’s allegations were true, his case still did not warrant non-refoulement protection.

21.  The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk).

22.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 28 June 2017 or thereafter.

23.  In the Director’s further decision dated 29 June 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2).

24.  The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk).

TCAB/NCPO (the Board)

25.  In his report, the Adjudicator set out the facts and the law clearly.  He was alive to the issues of the Applicant’s case.  He had doubt on the Applicant's allegations. He found the Applicant lacked reliable evidence to support many of his assertions and there were disproportionate, implausible and illogical features in the Applicant’s version. The Adjudicator considered there was no reliable evidence that the Applicant was a member of the Congress party as he claimed. Even if he was, he was just a grass-root level supporter. The Adjudicator found it was unlikely that the Applicant would be persecuted. He considered that even on the facts claimed by the Applicant, the latter still failed to prove he had sustained ill-treatment to a minimum level of severity. The alleged harm or ill-treatment was not instigated by the state or government officials. There was no evidence of state acquiescence.

26.  The Adjudicator was not satisfied the Applicant had a genuine and well-founded fear of persecution risk. He also found the Applicant failed to prove a genuine and substantial BOR3 risk or any real BOR2 risk. The Applicant also failed to prove that he would be subjected to risk that fitted the definition of ‘torture’.

27.  While agreeing to the COI materials that the police and the authorities in India might not be totally effective, the Adjudicator accepted there were rapid advancements and clean-up there. He considered reasonable state protection was available to the Applicant in his home country.

28.  In light of his findings that there were no risks of any kind that warranted non-refoulement protection, the Adjudicator did not consider it was necessary to go on to discuss internal relocation.

29.  On 15 September 017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

Court hearing

30.  In Form 86, the Applicant requested a hearing.  The hearing took place on 27 April 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court.

31.  The Applicant said he studied up to the 10^th class in India. However, no English was taught in school. He was assisted by a friend to prepare Form 86 and the affirmation for the current application for leave for judicial review. That friend was not working in the legal field. He did it free for the Applicant. The Applicant provided the contents; his friend wrote down for him.

32.  In court, the Applicant said he had not submitted all the relevant documents to the Director or the Board. He also said that he did not know the meeting with the Adjudicator on 15 September 2017 was scheduled for appeal purpose. He thought he would be just asked some questions then, so he had not prepared well for that meeting. Nor had he brought all the documents with him.

33.  The Applicant at first said the Adjudicator did not give him enough time to prepare documents for submission. This court asked the Applicant what those documents were. He said they were certificates of police reports about his complaints against the persecutors. He made those complaints to the police in India in 2013/2014. The Applicant first said he did not submit those documents to the Director or the Board because he thought they would reject those documents in any event. However, the Applicant soon changed to say those documents are still in India and he does not have them even now.

Grounds of judicial review

34.  In his affirmation dated 27 September 2017, the Applicant raised a number of complaints against the Director and the Adjudicator. He listed 10 grounds against the Director and 9 grounds against the Adjudicator. The Applicant used these headings to label the various grounds: misdirection in law; irrationality, procedural impropriety and procedural impropriety/unfairness. Many of the accusations were interrelated and many grounds against the Director were repeated against the Adjudicator. It would be more comprehensible to narrate the Applicant’s complaints as follows rather than to refer to those 19 grounds individually.

35.  The Applicant complained that the Director and the Adjudicator failed to carry out sufficient research and balanced enquiry to make sure the COI under consideration was up-to-date, relevant and fair. He also complained the Director and the Adjudicator failed to evaluate the conditions in India and failed to make a finding as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights. The Applicant alleged the Director and the Adjudicator failed to give due consideration to the facts of his case and failed to consider properly the issues of state acquiescence and state protection. He also complained the Director and the Adjudicator were wrong to find against him and to find there was no risk that warranted non-refoulement protection. The Applicant complained the Director and the Adjudicator had failed to call for psychological or psychiatric reports on him. He also aired his grievance on lack of legal representation.

36.  The Applicant complained that he was not given notice by the Director in advance of the screening interview; the interviewing officer did not ask him questions on internal relocation in India and failed to address the issue of internal relocation correctly.

37.  The Applicant further complained the Adjudicator made his decision on consideration of papers only; there was no oral hearing.

Discussion

38.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

39.  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]

40.  The Applicant’s complaint that there was no oral hearing before the Adjudicator is certainly not correct. He attended the appeal hearing before the Adjudicator on 15 August 2017. Thus, it is not true that the Adjudicator considered the Applicant’s case on documents only.

41.  The Applicant is also wrong in saying that he was not given notice in advance of the screening interviews and the interviewing officer did not ask him questions on the issue of internal relocation. The Director actually conducted two screening interviews with the Applicant, on 12 January 2016 and 4 February 2016 respectively (see paragraph 6 of the Director’s report dated 13 April 2016). In the interview, there was an exchange between the Applicant and the interviewing officer on the issue of internal relocation (see paragraph 21 of the same report).

42.  The Applicant complained the Director and the Adjudicator had conducted the screening process in an unfair manner. Looking at the two Director's reports (dated 13 April 2016 and 29 June 2017) and the Adjudicator’s report (dated 15 September 2017), I am satisfied that the Director and the Adjudicator had each given due consideration to the Applicant’s claim; they evaluated the facts carefully and applied the law correctly; they had carried out sufficient research and balanced regard of relevant and up-to-date country-of-origin information (“ COI”); there was no evidence of cherry-picking evidence; they had sufficient grasp of the conditions in India to understand and evaluate the Applicant’s case. Both the Director and the Adjudicator had addressed properly on the issues of state acquiescence and state protection. The Director also put his mind sufficiently to the consideration of internal relocation; the Adjudicator did not as he found no risk of any kind that warranted non-refoulement protection, so it was not necessary for him to go on to discuss internal relocation.

43.  The Director and the Adjudicator had not called for psychological or psychiatry psychiatric reports on the Applicant. They need not; the Applicant failed to justify why there was such a need.

44.  The Applicant also aired his grievance on lack of legal representation. He was represented by the Duty Lawyer Scheme in the screening interviews, which led to the Director decision dated 13 April 2016. He was not further represented thereafter.

45.  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.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process.

46.  The Applicant complained that the Director's two decisions and the Adjudicator’s decision were not Wednesbury reasonable. I review all those decisions under ‘rigorous examination and anxious scrutiny’. Having read the Director's decision plus further decision and the Board’s decision, I find the Director and the Board had adhered to the high standards of fairness required of the Applicant's non-refoulement claim. There is no substance in any of the complaints against the Director or the Adjudicator.

47.  In my judgement, the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

48.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

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