VIRENDER KUMAR v. DIRECTOR OF IMMIGRATION

HCAL 518/2019

[2022] HKCFI 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 518 of 2019

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in relation his non-refoulement claim.  He did not identify the decision complained of.  In his supporting affirmation filed on the same day, he wrote:

“I am not satisfied from decision of immigration so I want to see my case in higher authority under H.K.A.S.R. I submission my file as ‘A’ ”

The exhibit ‘A’ he submitted is a copy of his non-refoulement claim form lodged with the Immigration Department in connection with his claim for non-refoulement protection.  He did not even attach a copy of the decision complained of.  

2.  The Court’s inquiry revealed the following chronology:

Date	Even
9/6/2016	Applicant refused entry into Hong Kong and removed back to Shenzhen
8/9/2016	Applicant arrested in Hong Kong for illegally remaining in Hong Kong
10/9/2016	Applicant lodged non-refoulement claim by written signification
26/3/2018	Director’s Notice of Decision refusing Applicant’s application for non-refoulement protection (the “Notice”)
29/10/2018	Hearing of Applicant’s appeal against the Notice before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”)
28/12/2018	Board’s decision refusing Applicant’s appeal against the Notice (the “Decision”)
22/2/2019	Applicant’s application for leave to apply for judicial review of the decision of the Director (not the Decision of the Board)

3.  Based on the above chronology and the express wording of the Applicant’s Form 86, it appears that the Applicant is seeking leave to apply for judicial review of the decision of the Director in the Notice and not the Decision of the Board.

4.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures for appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. The Applicant’s application could be dismissed forthwith as an abuse of process.  Had he made an application in respect of the Decision, his application would have been made within time and would have been processed by this Court.  Giving him the benefit of an innocent mistake, this Court considered his application as if it were made in respect of the Decision.  If there are merits in the application, the Court will direct an amendment to the Form 86 and grant leave.  If there are no, it would be futile to make any amendment. The application will be dismissed as it stands.

5.  The Applicant’s sole ground of application is that he is not satisfied with the decision of the Director and, assuming for his benefit, with the Decision of the Board.  He did not give any particulars what is wrong with the decision that calls for judicial review. 

6.  On 15 December 2021, this Court wrote to the Applicant at his address provided in the Form 86, inviting him to provide his first language, contact number and submissions.  The letter was not returned through the post.  He has not informed the Court of his change of address.   There is nothing to suggest that he has not received the letter.  If indeed he has not received the letter because he had moved, he has to bear the consequence of his own neglect or omission.  Had he responded, the Court could have given him directions for the further conduct of his application. 

7.  The Applicant did not request for an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service.  In gist, his claim is based upon his fear that if he is refouled back to India, his life will be at risk because of his land dispute with his uncle.

9.  The Applicant is a national of India.  His case is that he inherited three pieces of land from his father in 2015, including a piece adjacent to his uncle’s land (the “Land”). His uncle has good connection with Gulab Singh, a leader of a political party (“BJP”).  One day in April 2015, while he was working on the Land, his uncle approached him and demanded the Applicant to give the Land to him.  The Applicant instantaneously replied “no”.  His uncle turned mad and demanded the Applicant to transfer the Land immediately or else he would kill the Applicant. Then, his uncle stabbed him with a knife, causing serious cuts on his right forearm. The Applicant bled.  He lodged a complaint with the police.  The police registered his complaint formally. 

10.  The Applicant went to a hospital for treatment.  His wounds were sutured and he was hospitalised for three days.  He dared not return home but lived with his sister some 9 kilometres from his home.  His wife and children moved to live with his mother-in-law.  He did not observe any action being taken by the police.  He learned from the villagers that his uncle had offered bribe to the police and hence the police took no action.  He also heard from them that his uncle kept on telling people that he would kill the Applicant if he ever saw the Applicant again.  Then the Applicant left India and arrived at Qunming, China on 31 July 2016 and then came to Hong Kong.

11.  The Applicant learned from his wife in December 2017 that his uncle was still repeating his death threats against him.  He did not consider internal relocation viable because his uncle could locate him through the BJP network.

The finding of the Board

12.  The Applicant gave evidence before the Board.  The Board found him evasive in his testimony and his allegations vague.  His evidence was inconsistent and unconvincing.  He gave different accounts as to whether he had gone to the hospital for treatment before making his complaint to the police.  Later, he changed his evidence and said that the police visited him in the hospital to take a statement from him. Then he changed his evidence as to whether the police had registered his complaint.  He also gave a mysterious account of a visit by his uncle while he was staying with his sister.  He could not explain the basis of his uncle’s demand for his Land.  In the end, the Board found the Applicant was not telling the truth and his case was inherently improbable.  It accepted the Applicant’s evidence as to his personal and family background and that he might have some dispute over the Land with his uncle, but was not satisfied about the threat, the attack and the uncle’s visit while he was staying with his sister.  The Board was not satisfied that the state of India was involved or would assist his uncle to track down the Applicant to harm him and that his uncle was so influential as he alleged.

13.  In conclusion, the Board found that the Applicant has failed to prove that the alleged risk of ill-treatment is real or foreseeable and that he has failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  Based on the Country of Origin Information, the Board also found internal relocation viable to avoid the threat and harm.  Accordingly, the Board dismissed his appeal against the Notice.

The applicable legal principles          

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

15.  The Applicant’s sole ground of application is that he is not satisfied with the decision of the Director.  The Court assumed for his benefit that he was likewise not satisfied with the Decision for the same reason.  But he did not put forward any specific grounds in his notice of application.   As mentioned above, in an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  In the absence of specific or particularised grounds, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

16.  The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including  the standard of proof and burden of proof, and quoted relevant precedents in support.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on his fear arising from his uncle’s threat to kill him.  The Decision of the Board was based on its finding of the Applicant’s credibility.  The Board carefully weighed the evidence and assessed his credibility, but found against him.  The Board found he was not telling the truth and did not accept his evidence about the threats to his life.  As the Applicant bears the burden of prove of his claims, such a finding is fatal. 

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable. 

Conclusion

18.  For the above reasons, even if the application were amended to an application relating to the Decision, there is no realistic prospect of success in the proposed judicial review.  It would serve no purpose to make the amendment.  The application for leave to apply for judicial review of the decision of the Director is an abuse of legal process as there is a statutory regime of appeal to the Board and the Applicant has invoked the appellate proceedings.  His application is therefore refused.

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

[1][1] [2018] HKCA 549

[2] [2018] HKCA 524 at para 14(1)