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HCAL 164/2018
[2019] HKCFI 1399
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 164 of 2018
BETWEEN
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Jaskarn Singh |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Adjudicator of 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 a national of India. He is now aged 29 (DOB: 16 May 1990).
2. The Applicant claimed he would be harmed or killed by Jaggi Singh (“JS”) due to a land dispute. Jaggi was a member of the Bharatiya Janata Party (“BJP”). He was a local BJP leader. BJP was in alliance with the Shiromani Akali Dal (“SAD”). SAD was a powerful party in Punjab. They controlled the government and the police. The Applicant and his family supported the Indian Congress Party.
3. In 1991, the Applicant's grandfather bought a piece of land from a friend, who was JS’s grandfather. They just signed a simple agreement. The transfer of the land was not registered with the Land Office.
4. In 2002, the Applicant's grandfather died. The Applicant's family farmed on the land.
5. JS did not like the Applicant's family. In 2014, JS claimed ownership of the land. The Applicant and his family objected. JS then harassed them. There were altercations between both sides. The Applicant and his father were assaulted. The father was serious hurt in August 2014. The matter had been complained to the police but the police refused to deal with it. The Applicant believed JS had bribed the police.
6. JS continued to harass the Applicant. He insulted and threatened the Applicant. The Applicant came upon JS a few times but he managed to escape from JS each time.
7. The Applicant was told by his parents to leave India for safety. On 25 December 2015, he left India for China.
8. On 1 January 2016, the Applicant sneaked into Hong Kong. He surrendered to the Immigration Department on 6 January 2016. He lodged a non-refoulement claim in May 2016.
9. The Applicant did not think the police in India could protect him. He also thought internal relocation was impossible.
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 5 February 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2015-12-25 |
The Applicant left India for China. |
| 2016-1-1 |
The Applicant sneaked into Hong Kong from China. |
| 2016-1-6 |
The Applicant surrendered to the Immigration Department. |
| 2016-5-16 |
The Applicant lodged a non-refoulement claim. |
| 2017-7-7 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. [‘the Director's decision”] |
| 2018-1-3 |
The Applicant appeared before the Board for appeal. |
| 2018-2-2 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-2-5 |
The Applicant applied for leave for judicial review. |
Respondents
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 complaint on a rehearing basis.
14. In Form 86, the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
15. In Re Moshsin Ali, the Court of Appeal ruled “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] Therefore, I shall deal with the current application in relation to the Board's decision only.
The Director's decision
16. In his decision dated 7 July 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to all the four applicable grounds.
The Board's decision
17. The Applicant appealed to the Board. The Adjudicator interviewed him.
18. The Adjudicator found there were implausible and inconsistent features in the Applicant's allegations. He also found there was irregularity in the hospital document submitted by the Applicant relating to his father’ injuries. The document stated the injuries were resulted from a traffic accident. The Applicant also told the Adjudicator that it was an accident. However, he later said the reference of accident was only a slip of tongue. The Adjudicator did not accept the Applicant’s explanation.
19. The Adjudicator disbelieved the Applicant's claim. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
20. The Applicant complained the decision of the Adjudicator was not reasonable or fair. He also complained the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.
Court hearing
21. The hearing took place on 13 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
22. The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents. He could not elaborate those grounds except saying the Director and the Adjudicator did not look into his case carefully. He said they should spend more time to analyse his case.
23. The Applicant confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
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] 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]
26. The Applicant complained the decision of the Adjudicator was not reasonable or fair. He also complained the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence. However, he could not elaborate his complaints except saying the Director and the Adjudicator did not look into his case carefully. He said they should spend more time to analyse his case.
27. The Applicant's complaints were vague and lacked proof.
28. The Adjudicator’s report showed the Adjudicator had made careful inquiry with the Applicant over his claim. He had given the Applicant sufficient opportunities to explain his case. The Adjudicator did not accept the Applicant's explanation in the end. He found him incredible and rejected his claim. He had proper basis to do so. The Adjudicator had stated his reasons clearly in his report.
29. 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.
Conclusion
30. 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 the 11th day of June 2019
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(Henry Ng)
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 the Applicant’s 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 11/6/2019
Jaskarn 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 11/6/2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1113/17 (formerly RBCZ/11890/16)
Adjudicator of Torture Claims Appeal Board/
Non-refoulement aims Petition Office
2nd Putative Respondent’s ref. no.:
USM7830/17/7/211/IN1488
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).
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