AMANDEEP v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 186/2018

[2018] HKCA 905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 186 OF 2018

(ON APPEAL FROM HCAL 689/2017)

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J U D G M E N T

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Hon L Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 11 May 2018 in HCAL 689/2017 refusing leave to the applicant to apply for judicial review. 

2.  The appellant did not file any skeleton submission or turn up at the hearing of the appeal.  We therefore dispose of the appeal in his absence.

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [1] to [8] of [2018] HKCFI 1000.  In short, the applicant is an Indian national and is aged 20.  He said he was a supporter of a political party, the Congress Party (“CP”) since 2014.  He participated in its activities.  In his village election in late 2014, one Manak Singh (“Manak”) of a rival political party, the Shiromani Akali Dal (“SAD”) was a candidate.  Manak and his friend Balbir Chand (“Chand”) stopped the applicant from putting up posters for CP.  They also asked him to quit CP to join SAD.  He refused.  A few days later when he was again putting up poster for CP, Manak, Chand and 3 to 4 others asked him to join SAD.  He again refused.  He was assaulted and got hurt.  The assailants threatened to kill him if he still did not join SAD.  He reported the matter to the local police, but no concrete action was taken. 

4.  Manak got elected in the village election.  On one occasion when the applicant was with his father, Manak and Chand asked him why he did not change from CP to SAD.  They assaulted him and his father.  He was injured.  He reported the matter to a higher police authority.  But the deputy superintendent of the police station only promised to look into the matter but did not register any formal report.  He believed that Manak and his friend Sohan Singh Thandal (“Thandal”) had influenced the police.  He did not complain to higher authorities.  He believed that he would not get any help from the police because SAD was the ruling party in Punjab where he lived.  SAD was actually influential in the whole country. 

5.  On the advice of his father, he moved to live in other places in India.  However, Manak and his people located his whereabouts.  He managed to escape and fled to another place.  Some unknown people managed to find him again.  They forced into his hiding place but he managed to escape again.  He moved elsewhere and later went to Delhi in July 2015.  His father told him on the phone that Manak and his people had fabricated a drug case against him and the police was looking for him. 

6.  He left India for China by air on 2 September 2015.  He attempted to come to Hong Kong on 9 and 21 September 2015, but was turned back on both occasions. He made a third attempt on 25 September and made a non-refoulement claim.  His claim was based on his fear of being persecuted, or even killed, by Manak, Chand, Thandal and other supporters/members of SAD due to his support for CP.

7.  By a notice of decision dated 13 April 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk[1], torture risk[2], and persecution risk[3]. By a further decision of 29 June 2017, the Director rejected the applicant’s claim based on BOR 2 risk[4] as well.

8.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 15 August 2017, the Board dismissed the appeal on 15 September 2017.  The Board, having considered all the evidence including oral evidence of the applicant, found that the alleged past ill-treatments were not logical or plausible and there was a lack of support for the material allegations made by the applicant.  The Board concluded at [104] to [108] of its decision that the applicant failed to establish his non-refoulement claim under all 4 applicable grounds.

The Judge’s decision

9.  The applicant then applied for leave to commence judicial review proceedings.  His application was in respect of the decisions of the Director and the Board.  The form 86 filed on 27 September 2017 did not contain any ground for judicial relief.  He listed in the supporting affirmation 10 grounds against the Director’s decision and 9 grounds against the Board’s decision.  The Judge pointed out in [34] of the CALL-1 Form that many of the grounds were interrelated and many grounds against the Director were repeated against the Board.  The grounds are summarized by the Judge in [35] to [37] of the CALL-1 Form as follows:

“35. The Applicant complained that the Director and the Adjudicator failed to carry out sufficient research and balanced enquiry to make sure that the COI under consideration was up-to-date, relevant and fair. He also complained that 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 that 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 that 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 that the Adjudicator made his decision on consideration of papers only; there was no oral hearing.”

10.  On 11 May 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  The Judge gave the following reasons at [38] – [48] in the CALL-1 Form for his refusal to grant leave:

“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[5]’.

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 that 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.[6] 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.”

The Appeal

11.  In the Notice of Appeal filed on 24 May 2018, the applicant put forward the following grounds of appeal:

“The plaintiff (applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Discussion

12.  In Re Moshsin Ali [2018] HKCA 549, the Court held that the decision of the Director is not susceptible to judicial review once an appeal to the Board (and/or petition to an adjudicator of the Non-refoulement Claims Petition Office, as the case may be) is pursued by a non-refoulement claimant.  Since the applicant had already petitioned to the Board against the Director’s decisions, the Court of First Instance in considering the application for leave to apply for judicial review need not consider the Director’s decisions.

13.  In an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in light of the grounds of appal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA.  If no viable ground is put forward to challenge the Judge’s decision, the appeal would be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for leave to apply for judicial review.  The grounds of appeal have been put forward before the Judge and were duly rejected.  We see no merit in these grounds as they do not identify any error in the Judge’s decision and the appeal plainly has no prospect of success. 

14.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any error of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Board, not for the court.  We do not see any reasonable basis to challenge the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.