|
HCAL1089/2017
[2018] HKCFI 1844
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 of 2017
BETWEEN
|
Sahota Tarsem Singh |
Applicant |
|
and |
|
|
Director of Immigration |
1st Putative Respondent |
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 28 (DOB: 29 January 1990).
2. The Applicant claimed if he was refouled to India, he would be killed by drug dealers, gangsters, politicians and the police.
3. The Applicant said that after he had graduated from college in 2009, he was hired by the Punjab police as informant. He worked for the Crime Investigation Department of the Ferozepur District and the Moga District. He would collect information of drug activities and get 10% of the assets seized in each case. Only four policemen and a professor knew of his job. The four police officers were Senior Superintendent Gurjinder Singh, Superintendent Hardial Singh Mann, Deputy Superintendent Satnam Singh and Station House Officer Charat Singh.
4. Since March/April 2010, the Applicant had been receiving threatening phone calls from gangsters. Those gangsters knew the Applicant had been giving information to the police. They threatened to kill the Applicant. The police later arrested one or two persons. The Applicant continued to act as police informant but he had to work in another area.
5. In mid-2012, the Applicant was following a drug case. The suspects had close connections with Tota Singh, who was an ex-member of the Legislative Assembly and Education Minister in Punjab. He was also a member of the Akali Dal Party (“ADP”).
6. The Applicant's efforts helped the police to seize some drugs and two people were arrested. However, the masterminds got away.
7. The Applicant's informant identity was exposed. He was then given police protection. In May/June 2012, the police arrested four gangsters who were about to attack the Applicant. The Applicant believed those men were hired by his enemies.
8. Two months later, the Applicant was investigating a land case. He was attacked by 3-4 armed men. The Applicant had to open fire to scare those people away. He reported the incident to his superiors but no clues were found.
9. One odd months later, the Applicant was knocked down by 2 motorbikes and the men on the bikes tried to assault him. Some people came to his recue. The Applicant was only slightly injured. He reported the matter to his superior Satnam Singh. There were no clues. Satnam Singh sent the Applicant to another place called Himachal Pradesh for hiding for some time.
10. One day, the Applicant returned to Punjab. He lent his motorbike and jacket to his cousin. The cousin was later somehow killed in a road accident. The Applicant believed the killers actually targeted him and his cousin was killed for mistaken identity.
11. The Applicant continued to go into hiding until he was recalled in January 2013 by his supervisor Charat Singh. He was assigned to investigate a drug case. In the end, a large quantity of drugs was seized and many people including some police officers were arrested.
12. The Applicant was later assaulted by six armed men in the street. They injured the Applicant and fled. The Applicant reported the matter to his supervisor Satnam Singh but there was no clue for investigation.
13. Several days later, some masked men opened fire at the Applicant and two other informants in the street. The Applicant managed to get away unhurt. The matter was reported to the superiors, who arranged for the Applicant and the other two informants to go to Malaysia. They stayed there for about 6 months before being recalled to come back to work in Punjab in September 2013.
14. In mid-2014, the police made arrest in a drug case, which the Applicant was following. It involved many politicians. The Applicant was told by his superior that those politicians had hired hitmen to attack him and the other informants. The Applicant then went into hiding for 15-20 days. He learnt that one informant had been shot in the arm.
15. The Applicant continued to work as a police informant. His efforts led to the arrest of a notorious drug dealer Sukhjeet Singh Kahlawan in January 2015. Sukhjeet Singh Kahlawan was hated by some police officers, who had him killed while in custody. The Applicant was made the scapegoat. His informant identity was leaked. The gangsters wanted to seek revenge. Satnam Singh told the Applicant to leave India. He made arrangement for the Applicant to come to Hong Kong.
16. The Applicant left India for Hong Kong on 14 March 2015. However, he did not seek protection here immediately. He only surrendered to the Immigration Department on 15 April 2015 and subsequently raised a non-refoulement claim.
17. The Applicant said the India police had also arranged for his wife to come to Hong Kong a few months later. Satnam Singh told him not to go back to India.
18. The Applicant said both the gangsters and the India police were after him now. Internal relocation was not viable and leaving India was the only option.
19. 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
20. On 15 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
21. Things happened in this order: –
| 2015-3-14 |
The Applicant entered Hong Kong as visitor. He was allowed to stay until 28 March 2015. |
| 2015-4-15 |
The Applicant surrendered to the Immigration Department after having overstayed from 29 March 2015. |
| 2015-7-27 |
The Applicant raised a non-refoulement claim. |
| 2017-7-12 |
The Director interviewed the Applicant. |
| 2017-7-18 |
The Director interviewed the Applicant again. |
| 2017-7-26 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”] |
| 2017-11-16 |
The Applicant appeared before the Board for appeal. |
| 2017-12-1 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-15 |
The Applicant applied for leave for judicial review. |
Respondents
22. 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.
23. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.
24. The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.
25. 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]
26. In the present case, the Director's decision dated 26 July 2017 was more than three months old by the time the Applicant filed his current application on 15 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 1 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 15 December 2017; the application against Board's decision was made in time.
Director of Immigration (the Director)
27. In the Director’s decision dated 26 July 2017, the immigration officer found there were unconvincing, unreasonable, inconsistent and implausible features in the Applicant's allegations.
28. The centrepiece of the Applicant's claim was that he was framed up for the murder of Sukhjeet Singh Khalawan. However, the Applicant did not mention this when he raised his non-refoulement claim in July 2015. The officer did not accept the Applicant's explanation that in July 2015 he was only asked to provide brief information. The officer did not find the Applicant reliable.
29. However, even on the Applicant’s own account of events the officer assessed the level of risk of harm against the Applicant to be low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. There was no evidence that the alleged enemies had real intention to kill the Applicant.
30. The officer was aware there were reports of police corruption in India. However, there was objective country-of-origin information (“COI”) showing the India government had taken measures to monitor the police. There were venues for justice in the country. The officer did not accept reasonable state protection was not available to the Applicant. He considered internal relocation was also viable in the Applicant's case.
31. The officer did not accept the Applicant faced real torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
TCAB/NCPO (the Board)
32. The Adjudicator found a number of inconsistent and implausible features in the Applicant’s allegations. She did not find the Applicant reliable or his evidence believable. She did not accept his claim.
33. The Adjudicator noted from relevant COI that there was corruption in India including police misconduct and abuse. However, the India government had taken measures to address the problems. The Adjudicator did not accept reasonable state protection was not available to the Applicant. She found internal relocation was also viable.
34. The Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
35. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider state acquiescence and state protection; failed to consider police collusion and misconduct; failed to consider corruption and incompetence of the administration in India; failed to give sufficient weight to COI favourable to his claim; being prejudicial with preconceived conclusion; rendered unreasonable decision; failed to attain high standards of fairness.
36. The Applicant complained the Adjudicator failed to make sufficient enquiry; failed to note that he had limitation in adducing evidence while in custody; failed to give him sufficient chance to arrange his evidence.
Court hearing
37. In Form 86, the Applicant requested a hearing. The hearing took place on 16 May 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.
38. The Applicant said someone helped him to prepare Form 86 and the affirmation for the current application. All the grounds of judicial review were in the documents.
39. The Applicant said he was detained in prison from November 2016 to September 2017 and then further remanded in the Immigration Department Detention Centre until January 2018. Being in custody, he could not produce some documents and photos to the Director and the Adjudicator. Those documents and photos later got destroyed in a fire in February/March 2018, so he could not produce them now. The Applicant did not say what the alleged photos and documents could prove.
40. The Applicant also said that he had not prepared his case well in the screening process because there was no one to help him.
Discussion
41. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
42. 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]
Legal assistance
43. The Applicant said that he had not prepared his case well because there was no one to help him.
44. The Applicant was represented by the Duty Lawyer Service until the Director rendered his decision on 26 July 2017. He was not given further legal assistance for his appeal to the Board.
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 only in the later stages of the screening process.
Detention
46. The Director interviewed the Applicant twice in July 2017 and the Adjudicator heard him on appeal in November 2017. The Applicant was in custody at those material times. He was imprisoned from November 2016 to September 2017 for illegal employment and then further detained by the Immigration Department till January 2018.
47. The Applicant complained that due to the custody he could not produce certain photographs and documents to the Director and the Adjudicator. He did not say what the alleged photos and documents could prove.
48. It is doubtful whether the alleged photos and documents existed at all in light of the Applicant's dubious allegation that those things had been destroyed in a fire shortly after he was released from detention.
49. The Applicant lodged his non-refoulement claim as early as July 2015. He had much time to prepare for the screening process before he was arrested for illegal employment in November 2016. Even though in custody, if the Applicant really had anything to submit he could ask for assistance bearing in mind he was represented by the Duty Lawyer Service up to the Director's decision dated 26 July 2017 and his wife had also come to Hong Kong.
50. I do not accept the Applicant had proper grounds to complain that he had been deprived of any chance to fully prove his claim before the Director and the Adjudicator.
Other complaints
51. The Applicant had other complaints against the Adjudicator and the Director. They were vague. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their 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 achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
52. 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.
Dated 13th day of August 2018
|
(Alan Ngan)
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 his solicitors must: |
|
|
|
|
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)). |
|
Sent to the Applicant on 13/8/2018
Sahota Tarsem Singh
Applicant’s ref. no:
Nil. |
|
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 13/8/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1252/17 (formerly RBCZ 12946/15)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 7996/17/8/34/IN1522
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
|