MANINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL168/2018

[2018] HKCFI 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 168 of 2018

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

Following;

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

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is an India national. He is now aged 24 (DOB: 20 April 1994). 

2.  The Applicant claimed he would be harmed or killed by one Mr Bittu  (“Bittu”) in India. The Applicant was an ardent supporter of the Congress party (“CP”). Bittu was a supporter of another party, the Shiromani Akali Dal (“SAD”). He threatened the Applicant to change to support SAD.

3.  The Applicant said he had been supporting CP since the age of 17. However, he was not a member. He attended the party’s meetings and rallies a few times a year. He also helped to put up posters for the party.

4.  CP’s local leader was Pritam Singh (“Pritam”). Pritam helped villagers to have access to many community services. The Applicant assisted Pritam.

5.  In 2012, there was an election in Punjab. The Applicant helped to persuade villagers to vote for CP.

6.  In May 2013, a friend told the Applicant that Bittu threatened that the Applicant should change to support SAD, otherwise the Applicant's life would be in danger. The Applicant did not understand why Bittu would not speak directly to him. He refused to switch to SAD.

7.  A few days later, Bittu confronted the Applicant. He threatened the Applicant to join SAD or the SAD people would kill the Applicant.

8.  A few more days later, some people abducted the Applicant and took him to farmhouse. Without saying anything, they attacked the Applicant. The Applicant was injured. The abductors then left. The Applicant managed to go back home. He suspected SAD did that to him. Pritam told him to go to the police but the Applicant did not take that advice. His family asked him not to report the matter to the police.

9.  About 10 days later, the Applicant received a phone call. That person threatened the Applicant not to report the matter to the police. He also threatened to kill the Applicant the next time. The Applicant believed it was Bittu who caused that phone call.

10.  For his safety, the Applicant was sent away by his parents to live with his aunt. There the Applicant also received threatening phone calls.

11.  The Applicant decided to go to Hong Kong to seek protection. He left India on 21 August 2013 by air. He did not raise a non-refoulement claim immediately. Instead, he told the immigration officer that he was a businessman and indicated he wanted to stay in Hong Kong for four days before going to Macau. The immigration officer refused the Applicant to land. Later, the Applicant’s cousin in Hong Kong obtained legal assistance for him. On 27 August 2013, the Applicant sought non-refoulement protection.

12.  The Applicant said Bittu and his people still came to his father’s house to look for him. Bittu continued to threaten to kill him.

13.  CP won the Punjab election in March 2017. The Applicant said SAD then became more jealous of CP. SAD had joined alliance with Bharatiya Janata Party, which was the ruling party in the country. The Applicant said SAD thus became more powerful and would certainly kill him to prevent him from working for CP.

14.  The Applicant had never reported his alleged fear to the India police. He said the police were corrupt. He did not believe the India authorities would protect him.

15.  The Applicant did not consider internal relocation was viable. He said SAD had wide connections so Bittu could find him anywhere in India.

16.  The Applicant’s non-refoulement claim was first refused with respect to risk of torture [1] by the Director on 7 November 2013. There was no appeal.

17.  The Applicant's claim was further considered under the Unified Screening Mechanism. In the ensuing screening process, 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 the remaining three applicable grounds: (i) risk of persecution,[2]  (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].

18.  On 5 February 2018, the Applicant applied for leave for judicial review.

Chronology of events

19.  Things happened in this order: –

2013-8-21	The Applicant left India by air. He tried to enter Hong Kong on 22 August 2018 as a visitor but was refused permission to land.
2013-8-27	The Applicant lodged a non-refoulement claim.
2013-10-25	The Director interviewed the Applicant.
2013-11-7	The Director refused the Applicant’s claim with respect to torture risk.
2017-7-31	The Director interviewed the Applicant again.
2017-8-3	The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR 2 risk.) [“the Director's decision’]
2017-11-22	The Applicant appeared before the Board for appeal.
2018-1-17	The Board refused the Applicant's claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR 2 risk.). [“the Board's decision’]
2018-2-5	The Applicant applied for leave for judicial review.

Respondents

20.  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.

21.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.

22.  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.

23.  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]

24.  In the present case, the Director's decision dated 3 August 2017 was more than three months old by the time the Applicant filed his current application on 5 February 2018. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 17 January 2018. 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 5 February 2018; the application against the Board's decision was made in time.

Director of Immigration (the Director)

25.  In the Director’s decision dated 3 August 2017, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant’s allegations, the officer found the level of risk of harm against the Applicant by his alleged enemies was low.

26.  The officer was aware there were reports of police corruption in India. However, there was objective country-of-origin information (“COI”) to show the India government had taken practical steps to monitor the police and to improve their effectiveness. The officer was satisfied that reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.

27.  The officer considered the Applicant failed to prove any real persecution risk, BOR3 risk or BOR2 risk that warranted non-refoulement protection.  He refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR2 risk).

TCAB/NCPO (the Board)

28.  The Adjudicator interviewed the Applicant. The Applicant told the Adjudicator that he had no other information to supply, or anything to supplement in relation to BOR2 risk.

29.  The Adjudicator considered all the evidence and did not find the Applicant's claim credible. He considered reasonable internal relocation was available to the Applicant anyway.

30.  The Adjudicator considered the Applicant failed to prove any real persecution risk, BOR3 risk or BOR2 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to those three remaining applicable grounds.

Grounds of judicial review

31.  In Form 86, the Applicant complained the Director and the Adjudicator rendered unreasonable and unfair decisions against him.

32.  The Applicant also accused the Adjudicator failed to give him sufficient time and chance to arrange evidence.

Court hearing

33.  In Form 86, the Applicant requested a hearing.  The hearing took place on 8 June 2018. The Applicant was in person. A Punjabi interpreter rendered interpretation service in court.

34.  In court, the Applicant said he had nothing to add to the grounds stated in Form 86. He was asked to explain what he meant by the Adjudicator’s failing to give him sufficient time and chance to arrange evidence. The Applicant replied he could not get all his proofs from India. He would like to obtain medical evidence of his fingers being cut by his enemies in the year of 2013. The Applicant, however, confirmed he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement 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 current application is only concerned with the Director's decision dated 3 August 2017 and the Adjudicator's decision dated 17 January 2018 regarding the Applicant's non-refoulement claim with respect to persecution risk, BOR3 risk and BOR2 risk. (The torture risk issue was well concluded in 2013. It is not a subject matter of the current application.)

38.  The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence. However, he clarified in court that he only wanted to have time to obtain proofs from India to prove his fingers being cut in 2013. There is no evidence that he had applied for adjournment from the Adjudicator and was refused. In fact, the Applicant had been in Hong Kong since August 2013. He had years to obtain such proof if he really wanted to obtain it, which related to a 2013 incident. In any event, that alleged proof was insignificant. The Adjudicator did not say he doubted the Applicant's finger injury. He did not believe the Applicant on other considerations.[7] In any event, the Applicant confirmed he had provided all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. Thus, he was not deprived of any chance to prove his claim as fully as he could in the circumstance.

39.  The Applicant’s other complaints against the Director and the Adjudicator were vague. He failed to provide particulars in court. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Director and the Adjudicator had proper basis for their individual findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator. Each 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 reports of the Director and the Adjudicator respectively showed that 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.

Conclusion

40.  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.

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