SATNAM SINGH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1063/2018

[2019] HKCFI 406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1063 of 2018

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 30 November 2018.  However, the applicant was absent on that day.

3.  By an Order dated 30 November 2018, this Court dismissed his application for want of prosecution.

4.  Pursuant to Order 59, rule 2B(1) of the Rules of the High Court (“RHC”), the applicant filed a summons on 5 December 2018 to seek leave to appeal against the said Order to the Court of Appeal.

5.  On 7 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 2 January 2019 and the applicant should file an affirmation to state his reasons for his absence on 30 November 2018 within 7 days from the date of the direction.

6.  The applicant did not comply with the direction to file his affirmation. He appeared before me and made an affirmation that he had never received the court’s notice of attending court on 30 November 2018.

7.  I am satisfied with his explanation for his absence on 30 November 2018.

8.  Under Order 32, rule 6 RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order I made on 30 November 2018 dismissing his application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave for judicial review of the Director’s Decision and the Board’s Decision.

The applicant

10.  The applicant is an Indian national, who came to Hong Kong as a visitor on 13 October 2015 and was allowed to stay until 27 October 2015. He overstayed without the Director’s permission. On 28 October 2015, he surrendered to the Immigration Department. On 9 May 2016, he lodged his non-refoulement claim. He claimed that if he was refouled back to India, he would be ill-treated or even killed by his paternal uncle, Gulzar Singh and his men because he had a land dispute with his uncle.

11.  In his statements to the Director and the Board, the applicant said that his grandfather had given to his father and uncle Gulzar Singh each a piece of land. Uncle Gulzar sold his land for payment of his gambling debt. He asked the applicant’s father to share his land with him. His father refused. Uncle Gulzar was angry. He was well connected with members of the Bharatiya Janata Party. He had, on two occasions in 2015 gone to the applicant’s farmland together with other people with weapons. They attacked the applicant and his father, causing injuries to them. Uncle Gulzar took over the farmland and refused to allow the applicant to enter. The applicant came to Hong Kong to avoid his uncle.

The Director’s Decision

12.  The Director considered the application by reference to the risks below:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

13.  By Notice of Decision dated 28 November 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim because it was not substantiated.

The Board

14.  The applicant appealed to the Board. He attended a hearing before the Adjudicator on 14 May 2018.

15.  By Decision dated 6 June 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

16.  Having considered the evidence, the Adjudicator found, given the inconsistencies unexplained, all the evidence in relation to the applicant’s alleged facts in support of his claim incredible. See paragraphs 55-58 of the Board’s Decision. She concluded in paragraph 59:

“Considering all the evidence before it, and in light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to India from Gulzar, his associates or anyone else.”

Application for leave for judicial review

17.  By Form 86 dated 11 June 2018, under Order 53, rule 3(2) RHC, the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator of the Board respectively.

18.  In his affirmation in support of his application filed on 11 June 2018, the applicant relied upon those grounds attached to Form 86 summarized below:

(1)  the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

(2)  the Director had failed to consider the issue of state acquiescence;

(3)  the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

(4)  the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5)  the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6)  the Director failed to appreciate corruption and incompetency of the administration in the applicant’s country;

(7)  the Adjudicator failed to make sufficient enquiry before making the determination;

(8)  the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and

(9)  the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

DISCUSSION

The Director’s Decision

19.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

20.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

21.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

22.  It is obvious that the applicant’s claim is facts sensitive. The Board had rejected all of his evidence in relation to the facts of the case. There is simply no factual basis in support of his claim.

23.  Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 14:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

24.  Grounds (1) to (7) are either the applicant’s opinion without any evidence to support or they are the facts to be found by the Director or the Board. They fail.

25.  As to ground (8), the Adjudicator was entitled to ask for evidence from the applicant as he has the burden of proof. He had not asked for indulgence or assistance from the Adjudicator. This ground fails.

26.  As to ground (9), the applicant was unable to identify the relevant evidence in support of his claim that he intended to adduce to the Board. This ground fails too.

27.  I find that the applicant is unable to show that he has reasonable chance of success in his intended judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

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