SALWANT SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 773/2017

[2019] HKCFI 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 773 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

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

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 36 (DOB: 18 December 1982). 

2.  The Applicant said he would be harmed or killed by his parents because he wanted to marry a Christian.

3.  The Applicant was brought up in a Sikh family. He was the only son of his parents. His father was the head of the village council and his uncle was a cabinet minister of the ruling party Shiromani Akali Dal (“SAD”). [SAD was the ruling party in Punjab and the government was a Sikh government.]

4.  The Applicant had worked overseas.  In late 2009, he met a girl called Gita in Cyprus. She was a Latvian and a Christian. The two soon cohabited. In September 2011, their son was born. The Applicant informed his father of the news. His father said nothing at that time.

5.  In June 2013, the Applicant had a car accident in Cyprus. His parents asked him to go back to India. The Applicant returned to India in October 2015 alone.

6.  In November 2015, the Applicant told his parents about his wife and son. He expressed he wanted to go back to Cyprus. The Applicant's parents became angry. They disapproved of Gita since she was a Christian.

7.  In January 2016, the Applicant went to the Cyprus Embassy to apply for visa in order to go back to reunite with his wife and son. The staff said Gita must come to India to process her sponsorship of the Applicant's visa. The Applicant did not ask Gita to come for the fear that his parents would harm her.

8.  The Applicant argued with her parents incessantly. He finally left home. Later, he learnt some SAD people wanted to kill him. He suspected his parents were the instigators. He had ceased contact with his parents since April/May 2016.

9.  On 25 June 2016, the Applicant flew to Hong Kong. He began overstaying from 10 July 2016. He surrendered to the Immigration Department on 13 July 2016 and raised a non-refoulement claim subsequently.

10.  The Applicant did not complain to the India police as he thought it was a family dispute. He also said his father had influence on the police and the India authorities would not help him.

11.  The Applicant said internal relocation was not viable because of the influence of his father and SAD. He now had no family support in India.

12.  The Applicant claimed Gita and their child had left Cyprus for Latvia.

13.  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].

14.  On 17 October 2017, the Applicant applied for leave for judicial review.

Timeline

15.  Things happened in this order: –

2016-6-25	The Applicant entered Hong Kong as visitor. He was allowed to stay until 9 July 2016.
2016-7-10	The Applicant began overstaying in Hong Kong.
2016-7-13	The Applicant surrendered to the Immigration Department.
2016-7-20	The Applicant lodged a non-refoulement claim.
2016-12-28	The Director refused the Applicant's claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”]
2017-9-6	The Applicant appeared before the Board for appeal.
2017-9-22	The Adjudicator refused the Applicant's claim with respect to all the four applicable ground. [“the Board’s decision”]
2017-10-17	The Applicant applied for leave for judicial review.

Respondents

16.  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.

17.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Board as respondents. The Director is the first putative respondent; the Board is the second putative respondent.

18.  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 decision. Therefore, I shall deal with his application in relation to the Board's decision only.

The Director's decision

19.  In his decision dated 28 December 2016, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 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 all the four applicable grounds.

The Board's decision

20.  The Applicant appealed to the Board. The Adjudicator interviewed him on 6 September 2017. 

21.  The Adjudicator found the Applicant's allegation was bare assertion. The Applicant was evasive. For example, he refused to provide the name of his uncle who was said to be a SAD cabinet minister. He did not explain clearly what he meant by “… I cannot file a complaint against my parents as they are in power now…” The Applicant was vague in describing his ‘religious problem’. He also added new allegation by saying his father and sister’s husband were shot dead in May 2017 since he refused the marriage arrangement they had arranged for him. The Adjudicator found the Applicant’s evidence unreliable.

22.  The Adjudicator found there was no evidence of state involvement or acquiescence. The Applicant had not sought help from the India authorities. He failed to prove the state was unwilling or unable to offer him protection. There was no also evidence the Applicant had been inflicted with physical/mental harm to a minimum level of severity. The complained situation was not for Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).

23.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 22 September 2017, she refused the Applicant’s appeal with respect to all the four applicable grounds.

Grounds of judicial review

24.  In his affirmation, the Applicant complained he was detained and not given chance to prove his claim. He asked for time and bail in order to get documents from India to prove his case.

Court hearing

25.  The hearing took place on 10 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

26.  The Applicant said he was in custody in September 2017 during the Board hearing and was only freed in mid-December 2017. He told the Adjudicator that he should be given time to provide documents to prove his case.

27.  The Applicant said he did not know previously that the documents were necessary, otherwise he would try to obtain them earlier. He said he had not written to his relatives for help to get the proof while he was in custody because he did not want his enemies to find out his situation. The Applicant complained he was not given opportunity to prove his case.

28.  The Applicant told me the said documents were some India police reports. He did not have them even now.

Discussion

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

30.  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]

31.  The Applicant complained he was not given opportunity to prove his case. He alleged there were police reports to be obtained from India for that purpose.

32.  According to the Applicant, he was in custody in September 2017 when the Board hearing took place. Even so, he could have written to his relatives for help to get the documents if those documents existed at all. The Applicant did not. He excused that he did not want his enemies to find out his situation. I find such explanation unreasonable.

33.  The Applicant did not have the alleged documents even now. His talk of the said documentary proof should be dismissed as vague talk. There was no evidence he had raised that to the Adjudicator or he had applied for adjournment in the Board hearing for cause. The Applicant failed to prove he had been deprived of any chance to prove his case before the Director or the Adjudicator.

34.  The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant's claim. 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. 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. She 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.

Conclusion

35.  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.

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