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HCAL167/2018
[2018] HKCFI 2411
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 167 of 2018
BETWEEN
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Satnam Singh |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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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 35 (DOB: 21 February 1983).
2. The Applicant claimed he would be harmed or killed by his uncle Kuldeep Singh (“Kuldeep”) because of a land dispute.
3. The Applicant's father had three brothers including Kuldeep. Each had inherited a house from the Applicant’s grandfather and lived next to each other.
4. Kuldeep was a retired police inspector. He was wealthy and had connection with the leaders of the Indian National Congress (“INC”). Kuldeep himself was a supporter of INC.
5. The Applicant did not have a good relationship with Kuldeep.
6. There was a piece of land owned by the four brothers. Kuldeep wanted to sell the land but the Applicant’s father objected. Kuldeep demanded the Applicant’s father to transfer his share of the land to him.
7. One day in 2013, Kuldeep brought some men to break down the partition wall between the Applicant’s family house and the adjacent one. The Applicant’s father was pushed to the ground and got injured. The Applicant intervened. Kuldeep threatened to kill the Applicant and injured him. The neighbours came to stop the fight. Kuldeep threatened he would kill the Applicant’s family and take away their house. Then he left.
8. The Applicant’s father complained to police. He told the Applicant to stay away. The Applicant then lived in his aunt’s place in another village. He stayed there for two months. Meanwhile, Kuldeep continued to harass the Applicant’s family and threatened to kill the Applicant.
9. The Applicant left his aunt’s home. He went to another place and stayed there for one and a half months. He heard from his friend that Kuldeep had taken their house. Kuldeep also asked people of the Applicant’s whereabouts.
10. The Applicant’s parents also left home to live in another village. They suggested the Applicant should leave the country.
11. On 3 April 2014, the Applicant left India. He arrived in Hong Kong the next day as visitor. He was allowed to stay until 18 April 2014. The Applicant overstayed and was arrested on 19 April 2014.
12. The Applicant last contacted his family in May 2016. He was told things in India had remained unchanged.
13. The Applicant did not think the India police would protect him as they had not done anything to protect his father. The Applicant feared the police would bring problems to him. He believed the police were under Kuldeep’s influence.
14. The Applicant said internal relocation was not possible because Kuldeep had good connection with the police and INC. They could find him anywhere in India.
15. 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].
16. On 5 February 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2014-4-4 |
The Applicant entered Hong Kong as visitor. He was allowed to stay until 18 April 2014. |
| 2014-4-19 |
The was arrested by the police for overstaying. He subsequently lodged a non-refoulement claim. |
| 2015-9-11 |
The Applicant withdrew his non-refoulement claim. |
| April 2016 |
The Applicant requested to re-open his non-refoulement claim. |
| 2016-9-2 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision’] |
| 2017-6-5 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-19 |
The Applicant failed to submit additional facts by the deadline and thereafter. |
| 2017-6-20 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision’] |
| 2017-12-27 |
The Applicant appeared before the Board for appeal. |
| 2018-1-25 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-2-5 |
The Applicant applied for leave for judicial review. |
Respondents
18. 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.
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.
20. The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.
21. 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 decisions
22. In the Director's decision dated 2 September 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He 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.
23. In the Director's further decision dated 20 June 2017, the Director decided the Applicant faced no BOR2 risk. He refused the Applicant's claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
24. The Applicant appealed to the Board. The Adjudicator interviewed him on 27 December 2017.
25. The Applicant produced a First Information Report to the Adjudicator. It was about a complaint made by one Jarnail Singh against the Applicant. The Applicant told the Adjudicator that Jarnail Singh attacked him in the incident stated in para. 7 above. However, before the Applicant complained that matter to the Bangladesh police Jarnail Singh had already made a false report to the police against the Applicant. This version was contrary to what the Applicant had earlier told the Director. He told the Director that Kuldeep hit him that night. There was no mention of Jarnail Singh. Also, the Applicant told the Director that his father complained to the police; the Applicant himself did not.[6]
26. Apart from the inconsistencies, the Adjudicator also found a number of implausible features in the Applicant's claim.[7]
27. The Adjudicator found the Applicant's evidence unreliable. He did not accept the Applicant’s claim.[8]
28. In any event, the Adjudicator considered reasonable state protection and internal relocation were available to the Applicant.[9]
29. The Adjudicator considered the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 25 January 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
30. In Form 86, the Applicant made a number of complaints against the Director. As said in para. 21 above, I shall deal with his application in relation to the Board's decision only because the Director's decisions had already been taken on appeal to the Board.
31. The Applicant complained the Adjudicator’s decision was not reasonable or fair. He argued there were human rights reports supporting his assertion that the administration in the Jammu District where he lived was corrupt and incompetent. He maintained there was real risk to his life in India.
32. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence for his appeal.
Court hearing
33. The Applicant requested a hearing. It took place on 28 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
34. The Applicant said a friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He failed to elaborate them.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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’.[10] 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.” [11].
37. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence for his appeal. The Applicant's allegation was vague and he failed to provide specifics.
38. The Adjudicator’s report was a detailed one. It showed the Adjudicator was in joint endeavour with the Applicant during the appeal hearing. The Applicant had been given reasonable and sufficient opportunities to state and explain his case. There was no evidence that the Applicant had complained to the Adjudicator about lack of time and chance to arrange for his evidence.
39. The Applicant complained the Adjudicator’s decision was not reasonable or fair. He argued there were human rights reports supporting his assertion that the administration in the Jammu District where he lived was corrupt and incompetent. He maintained there was real risk to his life in India.
40. The Adjudicator had studied the Applicant's case in detail and carefully. He disbelieved the Applicant's claim since it contained a number of inconsistencies and implausible features, which the Applicant failed to explain satisfactorily. The Adjudicator had proper basis for his finding and conclusion, which were not Wendensbury unreasonable.
41. The Adjudicator referred to relevant country-of-origin information ("COI"). He found reasonable state protection and internal relocation were available in the Applicant's case. Such finding was not Wendensbury unreasonable.
42. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. He 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 case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.
Conclusion
43. The Applicant's complaints are not reasonable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 20th day of November 2018
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(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: |
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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 20/11/2018
Satnam 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 20/11/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1671/16 & RBCZ 9002281/17
(formerly RBCZ 11679/16)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 4887/16/9/266/IN1040
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] CACV 54/2018, para 45.
[6] The Board's decision, para 62.
[7] Ibid., para 63.
[8] Ibid., para 72.
[9] Ibid., paras 77-80.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
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