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HCAL1130/2017
[2018] HKCFI 1467
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1130 of 2017
BETWEEN
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Mandair Amandeep Singh |
Applicant |
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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 an India national. He is now aged 28 (DOB: 16 January 1990).
2. The Applicant claimed he would be harmed or killed by his stepfather Gurdayal Singh (“Gurdayal”).
3. The Applicant's natural father passed away in 1992. The Applicant was his only child. The Applicant's mother married Gurdayal in the same year. Gurdayal was a rich and powerful Sikh. He was a supporter of the ruling party, the Bharatiya Janata Party (“BJP”). He had close connection with a Legislative Assembly Member called Surinder.
4. In 2004, the Applicant's mother died too. The Applicant inherited her properties and continued to live with Gurdayal.
5. Gurdayal’s father was Bawa Singh (“Bawa”). Bawa was fair to the Applicant. He regarded the Applicant as his grandson. In 2005 or 2006, Bawa decided to distribute his land equally to Gurdayal, his two sons and the Applicant. He left a will before he passed away in 2006 or 2007. Gurdaval, however, did not want the Applicant to get his entitled share.
6. In 2014, the Applicant wanted to study abroad. He asked his stepfather to support him financially. Gurdayal refused him. The two had a dispute.
7. In early 2015, Gurdayal and one of his sons Jeet attacked the Applicant. Gurdayal asked the Applicant to surrender his share of the land and properties. The Applicant was scared. He fled to another city to live with his maternal aunt. He stayed there for more than a month before moving to live with his maternal uncle Sheetal for another three months.
8. In mid-2015, Sheetal started negotiating with Gurdayal over the Applicant’s entitlement. The Applicant went home to live with Gurdayal. His freedom became restricted.
9. Gurdayal falsely told the Applicant that he would distribute the land to the Applicant. He asked the Applicant to sign a document. It was in fact a document for the Applicant to surrender his entitlement. The Applicant refused to sign. Gurdayal then threatened that he would use other means to get the Applicant's share of land.
10. Gurdayal locked up the Applicant. He and his son assaulted the Applicant and forced the Applicant to sign the document to surrender his land. Gurdayal threatened to kill the Applicant with a knife. The Applicant had to jump out of the window to escape from his stepfather. He reported the matter to the police but the police did not take any action. The Applicant believed they were influenced by Gurdayal.
11. In August 2015, the Applicant fled to another city. In order to dodge his stepfather, he move from place to place. The Applicant was told by his uncle Bhajan Singh (“Bhajan”) that Gurdayal was looking for him. Gurdayal told Bhajan that he would get the Applicant soon. Bhajan then told the Applicant to leave.
12. In September 2015, while the Applicant was in a place called Amritsar a car came from behind to hit him. The Applicant said the driver looked like Gurdayal. He believed his stepfather wanted to kill him. The Applicant reported the matter to the police. Although the police said they would look into his case, they also said they had too many cases to handle.
13. The Applicant did not think there were any authorities in India that could assist him. He also thought internal relocation was not viable. He decided to leave India. On 25 November 2015, he left India for China. Later, he sneaked into Hong Kong and sought non-refoulement protection.
14. In the ensuing two-tier screening process here (“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].
15. On 21 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
16. Things happened in this order: –
| 2015-11-25 |
The Applicant left India for China. |
| 2015-11-27 |
The Applicant entered Hong Kong illegally. He surrendered to the Immigration Department. |
| 2016-9-8 |
The Applicant raised a non-refoulement claim. |
| 2017-7-21 |
The Director held a screening interview with the Applicant. |
| 2017-7-31 |
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”] |
| 2017-11-27 |
The Applicant appeared before the Board for appeal. |
| 2017-12-11 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondents
17. 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.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.
19. 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.
20. 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]
21. In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 21 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 11 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 21 December 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
22. In the Director’s decision dated 31 July 2017, the immigration officer found a number of unreasonable, unconvincing and illogical features in the Applicant’s allegations.
23. The officer was aware there were reports of police and government corruption in India. However, there was also objective country-of-origin information (“COI”) showing ongoing reforms in the country. The officer was satisfied reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
24. The officer did not accept there was any real torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds.
TCAB/NCPO (the Board)
25. The Adjudicator found the Applicant was an untruthful witness and his claim was unbelievable.
26. Even on the strength of the Applicant's allegations, the Adjudicator found no evidence of instigation, acquiescence or consent by the state or officials.
27. The Adjudicator was aware there were reports of police and government corruption in India but there were also reforms. The Adjudicator was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
28. The Adjudicator did not accept the Applicant had any risk that warranted non-refoulement protection. He 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).
Grounds of judicial review
29. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issues of state instigation, state acquiescence and state protection; failed to appreciate the misconduct, corruption and incompetence of the India police and government; failed to properly consider relevant COI; cherry-picked information; rendered unreasonable decisions; failed to attain high standards of fairness.
30. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.
Court hearing
31. In Form 86, the Applicant requested a hearing. The hearing took place on 5 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
32. The Applicant did not elaborate his complaints against the Adjudicator and the Director even though he was invited to.
33. The Applicant was asked how his being detained had affected his claim. He replied he was detained between December 2016 and January 2018 so he could not gather proofs from India. He admitted he could write to India but he feared that would disclose to his enemies where he was. When asked what proofs he could get, the Applicant said they were land documents and whatever that could prove what had happened to him.
34. The Applicant also complained the Director and the Adjudicator had refused his request for more time to get proofs for his claim.
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’.[6]
37. The Applicant came to Hong Kong in late November 2015. He surrendered to the Immigration Department and was released on recognizance on 29 December 2015. He had been free for almost a year before he was arrested in December 2016 for illegal employment and sentenced to 15 months’ imprisonment. He was released in January 2018.
38. The Applicant's being detained between December 2016 and January 2018 was his own making. If he had really wanted to obtain proofs from India, he could have done so in that year before he was caught and imprisoned. Even in custody, he could have written to his trusted ones in India for help. It is absurd to hear the Applicant say he feared the enemies in India would find out his location if he did write, when he was well safe in a Hong Kong prison.
39. There is no evidence that the Applicant had really requested the Director and the Applicant for more time to get proofs for his claim. Indeed, he had more than sufficient time to get whatever proofs for his claim before he was being detained in December 2016. I do not accept the Applicant's complaint that he had no chance to prove his claim to the Director and the Adjudicator as fully as he had wanted to.
40. There are other complaints by the Applicant. 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 duly considered the Applicant’s claim. There was no evidence that the Director and the Adjudicator were prejudiced or cherry-picked information. Their findings, conclusions and decisions were not Wednesbury unreasonable. The Director and the Adjudicator made no errors of law and there was no procedural unfairness. They 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. There is no substance in any of the complaints against the Director or the Adjudicator.
Conclusion
41. 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 9th day of July 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 9/7/2018
Mandair Amandeep 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 9/7/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1258/17 (formerly RBCZ 13243/16)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 8122/17/8/160/IN1549
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.
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