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HCAL759/2017
[2018] HKCFI 1002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 759 of 2017
BETWEEN
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MANDIP Singh |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 an India national. He is now aged 35 (DOB: 14 March 1983).
2. The Applicant came to Hong Kong on 14 September 2010 as a visitor but he overstayed after 28 September 2010. He was arrested by the police in an anti-illegal workers operation on 5 October 2010. He then sought non-refoulement protection, claiming the father and the brother of his girlfriend Amarjit threatened to kill him because they did not approve the love affairs between him and Amarjit. The girl’s father and brother threatened to kill him should he continue to see the girl. The father was an influential police officer. He told the Applicant that he could frame him with drugs accusation and put him in prison. The Applicant dared not report the matter to the police because of the status of the girl’s father. He decided to leave India for safety.
3. In the ensuing two-tier 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].
4. On 12 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
5. Things happened in this order: –
| 2010-9-14 |
The Applicant arrived in Hong Kong from India as a visitor. He was allowed to stay until 2010-9-28. He overstayed thereafter. |
| 2010-10-5 |
The Applicant was arrested in an anti-illegal workers operation. He then sought non-refoulement protection. |
| 2015-1-29 |
The Director held a screening interview with the Applicant. |
| 2015-4-13 |
The Director refused the Applicant’s claim with respect to three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3 risk). [“the Director's decision”] |
| 2015-4-27 |
The Applicant appealed to the Board. |
| 2016-6-3 |
The Applicant appeared before the Board for appeal. |
| 2017-2-23 |
The Adjudicator refused Applicant’s claim with respect to the three said applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (or BOR3 risk). [“the Board’s decision”] |
| 2017-7-19 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-8-2 |
The Applicant failed to submit additional facts by deadline or thereafter. |
| 2017-9-19 |
The Director refused Applicant’s claim on the fourth applicable ground: life risk (or BOR2 risk). [“the Director's further decision”] |
| 2017-10-12 |
The Applicant applied for leave for judicial review. |
[The Board confirms that the Applicant had not appealed against the Director's further decision dated 19 September 2017 in relation to life risk (or BOR2 risk).]
Respondent /Interested Party
6. 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.
7. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant only named the Board as respondent.
8. 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]
9. In the present case, the Applicant only sought leave for judicial review against the Adjudicator’s decision dated on 23 February 2017. It was more than three months old by the time the Applicant filed his current application on 12 October 2017.
10. There was only one non-refoulement claim made by the Applicant. It had to be considered on different applicable grounds. Even after the Adjudicator had refused Applicant’s claim with respect to the three applicable grounds of torture risk, persecution risk and CIDTP risk (or BOR3 risk), the Director still had to further consider the fourth applicable ground of life risk (BOR2 risk). He rendered his further decision only on 19 September 2017. The Applicant did not appeal against that further decision but he had appealed against the Director's earlier decision dated 23 February 2017.
11. In the 2-tier screening process, the Applicant should not seek judicial review against any decision of the Director or the Board before they had considered all the applicable grounds. The last decision was rendered by the Director only on 19 September 2017. Although it was in respect of life risk (BOR2 risk) only, it was really part and parcel of the whole screening. Therefore, though the Board’s decision dated 23 February 2017 was well outside the 3-month limitation period, I consider there is a good reason to allow the Applicant to apply albeit late for leave for judicial review against the Board's decision.
12. The Applicant only applied for leave for judicial review against the Board in respect of its decision dated 23 February 2017. As such, the Board is the putative respondent; the Director is the putative interested party.
No request of hearing
13. Order 53, rule 3 of the Rules of the High Court provides:
The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.
14. In Form 86, the Applicant has not requested a hearing. Nor has he stated such a wish in his affirmation. There is nothing ambiguous in the application that calls for a hearing. As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only.
Director of Immigration (the Director)
15. In the Director's decision dated 13 April 2015, the immigration officer considered the level risk of harm the Applicant would face upon return to India was low. The officer noted that the Applicant had not been inflicted with any actual bodily harm. He found the Applicant failed to establish he would face a real and substantial risk as he claimed. Furthermore, reasonable state protection was available to the Applicant in India; reasonable internal relocation was also possible. The officer did not accept that the Applicant had a genuine and substantial BOR3 risk. There was also no well-founded persecution risk. The officer noted that the Applicant’s perceived situation did not involve any state instigation or state acquiescence. He concluded that any ill-treatment or harm by Amarjit’s father and brother against the Applicant was unlikely to materialise. The officer was not satisfied there was any real, personal and foreseeable torture risk in the Applicant’s case.
16. The officer refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (or BOR3 risk).
17. In the Director's further decision dated 19 September 2017, the officer considered the Applicant had failed to establish a personal and real risk of right to life under BOR2.
18. The officer refused the Applicant’s non-refoulement claim with respect to the applicable ground of life risk (or BOR2 risk).
TCAB/NCPO (the Board)
19. The Applicant only appealed against the Director's decision dated 13 April 2015, which involved these three applicable grounds: torture risk, persecution risk and CIDTP risk (or BOR3 risk). [He had not appealed against the Director’s further decision dated 19 September 2017 in relation to life risk (or BOR2 risk).]
20. The Applicant appeared in person before the Board on 3 June 2016 During the hearing, he elected not to give evidence.
21. On the information available, the Adjudicator considered that the Applicant's perceived harm had nothing to do with state instigation or state acquiescence or people acting in official capacity. The Adjudicator found that there was no torture risk. He also found the Applicant would not face ill-treatment reaching a minimum level of severity. He concluded there was no genuine and substantial BOR3 risk or well-founded persecution risk in the Applicant’s case.
22. On 23 February 2017, the Adjudicator refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (or BOR3 risk).
Grounds for judicial review
23. In support of his application, the Applicant submitted a one-page affirmation [Folio 2]. He simply said he could not go back to his country because there was still danger to his life.
Discussion
24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
25. 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]
26. The Applicant's claim was a simple one. It is apparent from the Adjudicator’s report that he was alive to the issues of the Applicant's claim. He had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s reports showed he was acquainted with the facts and the law. He considered the Applicant's case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were not Wednesbury unreasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
27. The Director is an interested party in the current application. For the sake of ‘rigorous examination and anxious scrutiny’, I have also reviewed the Director's findings, conclusions and decisions. I am satisfied they were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness. What has been said of the Adjudicator in paragraph 26 above is also true of the Director’s case. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
28. The Applicant fails to put forward any complaint that is reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review
Dated 11th day of May 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 11/5/2018
MANDIP 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 11/5/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1426/15/4/118/IN338
Director of Immigration
Putative Interested Party’s ref. no.:
INCZ/90001144/17 (formerly RBCZ/1482/10)
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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