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HCAL662/2018
[2019] HKCFI 365
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 662 of 2018
BETWEEN
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Sakattar Singh |
Applicant |
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Jeremy Glen, Esq. |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 31 (DOB: 9 March 1987).
2. The Applicant claimed he would be harmed or killed by people of the Shiromani Akali Dal Party (“SAD”) because he had injured and killed some SAD people in a traffic accident. SAD was a political party in alliance with the Bhartiya Janta Party (“BJP”). BJP was the ruling party in India which had great influence in different parts of India. The Applicant said the SAD people could do anything including killing and kidnapping.
3. The Applicant said he worked as a delivery driver. In January 2013, his vehicle collided with another vehicle. Both vehicles were severely damaged. The Applicant was injured in the accident but he was still assaulted by some people. He suffered severe injuries and was taken to a hospital. Later, he was moved to another hospital. He was in coma for the first month and hospitalised for a total of six months.
4. The Applicant later came to know that the driver of the other vehicle was also severely injured and four passengers on that vehicle died. The driver was working for the police and was affiliated with SAD. The four passengers killed were members and high-ranked officials of SAD.
5. It was later found out those people who assaulted the Applicant belonged to SAD. Some SAD people went to his home to look for him after the accident. The Applicant was in hospital at that time. Those people threatened his family then.
6. After leaving hospital, the Applicant went to stay with his uncle in another place to avoid the SAD people. He then went to Nepal. A month later, he read from the newspaper in Nepal that he was wanted in India for murder. His friend told him some SAD people had gone to Nepal to look for him. The Applicant then went back to India to stay in a Sikh temple. His father made arrangement for him to go to Hong Kong.
7. On 30 March 2014, the Applicant arrived in Hong Kong as visitor. He was allowed to stay until 13 April 2014 but he overstayed. The Applicant was arrested three months later on 15 July 2014. He subsequently raised a non-refoulement claim.
8. The Applicant had not sought help from the India police. He said the police were corrupt. He had no money to bribe them. He also said the police were under the control of SAD. The Applicant said his family had tried to make a report to the police but the police would not register their complaint. The handling officer told his family members to make a report elsewhere.
9. The Applicant said internal relocation was not feasible. It was difficult for him to make a living elsewhere in India. He feared the SAD people would locate him for revenge.
10. 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].
11. On 17 April 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2014-3-30 |
The Applicant left India. He entered Hong Kong as visitor and was permitted to stay till 13 April 2014. |
| 2014-4-14 |
The Applicant began overstaying here. |
| 2014-7-15 |
The Applicant was arrested by the police. |
| 2014-7-17 |
The Applicant filed a non-refoulement claim. |
| 2016-6-28 |
The Director interviewed the Applicant. |
| 2016-7-22 |
The Director interviewed the Applicant again. |
| 2016-8-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds:(i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director’s decision”] |
| 2017-7-10 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-7-24 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-31 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2018-1-12 |
The Applicant appeared before the Board for appeal. |
| 2018-3-22 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-17 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
13. 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.
14. 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]
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
16. In his decision dated 25 August 2016, the Director did not accept the Applicant faced any torture risk, persecution 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 non-refoulement claim with respect to those three applicable grounds.
17. In his further decision dated 31 July 2017, the Director refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 12 January 2018.
19. The Adjudicator found there were inconsistent and unsatisfactory features in the Applicant's allegations. For example, the Applicant was inconsistent in his description of when his family came to know about the accident and how he was moved from the first hospital to the second one.
20. The Adjudicator found it odd that the Applicant’s enemies should fail to get him while he was in hospital for 6 months. The Adjudicator did not believe the Applicant's explanation that his family had bribed the hospital staff to keep his whereabouts a secret.
21. The Adjudicator found there was no support of the Applicant's evidence. He did not accept the Applicant's claim. He was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.
22. The Adjudicator was aware there was a mixed review of the India police and authorities. He considered internal relocation was viable in the Applicant's case in any event.
23. On 22 March 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
25. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (“COI”); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof and failed to hold an oral hearing.
26. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.
27. The Applicant further complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
28. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.
Court hearing
29. The hearing took place on 1 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
30. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
31. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. 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]
34. It was incorrect for the Applicant to say that his claim had gone on appeal to the Board without the Director’s screening on BOR2 risk. The Director’s further decision dated 31 July 2017 was on BOR2 risk. He dealt with the issue sufficiently. The Applicant had not submitted additional facts to the Director for consideration. The Director need not hold further interview simply for BOR2 risk. The Director's further decision must be read in conjunction with his earlier decision dated 25 August 2016, where there was a clear analysis of the Applicant's case. It was also wrong for the Applicant to say the Adjudicator failed to hold an oral hearing. The Board hearing took place on 12 January 2018. The Applicant was present.
35. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 25 August 2016. He complained there were failures by the assigned duty lawyer. However, he failed to give specifics.
36. The Applicant complained there was a lack of and/or insufficient legal representation. 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.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
37. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
38. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
40. The Applicant said he received the appeal bundle on 5 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 January 2018. Thus, the bundle was served on the Applicant in time.
41. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
42. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
43. The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
44. The Adjudicator did not accept the Applicant's claim that he faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. Therefore, state protection and internal relocation were not real issues in the present case. Nevertheless, the Adjudicator went on to consider that a person could avoid fear if he could reasonably relocate himself to a place where state protection would be available. He found that even if the Applicant really faced the risk he alleged, he could relocate himself safely to other parts of India. The Adjudicator viewed that state protection as well as internal relocation were available to the Applicant.
45. The Adjudicator need not consider the issue of state acquiescence as he had found the Applicant failed to establish any risk that warranted non-refoulement protection. For the same reason, there was no necessity to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights.
46. There was no evidence the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
47. There was also no evidence the Adjudicator had misdirected himself in law or applied the wrong standard of proof.
48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. 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. He considered the Applicant’s claim 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
49. 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.
Dated 20th day of February 2019
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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
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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 20/2/2019
Sakattar 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 20/2/2019
Jeremy Glen, Esq.
Putative Respondent’s ref. no.:
USM 4660/16/9/39/IN1018
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9002709/17 (formerly RBCZ 2452/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[11] Form 86, Point 6 on page 20.
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