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HCAL929/2018
[2019] HKCFI 2055
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 929 of 2018
BETWEEN
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Bhupinder Kumar |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 a national of India. He is now aged 31 (DOB: 4 June 1988).
2. The Applicant claimed he would be harmed or killed by people of the Shiromani Akali Dal (“SAD”) due to a dispute between SAD and the Congress Party over the presidency of a Hindu temple.
3. The Applicant had a good friend called Vijay Kumar (“VK”). VK’s father Jaspal Singh (“JS”) was a supporter of the Congress Party. The Applicant also supported the Congress Party. He volunteered to help JS.
4. JS was a Sikh. However, he was elected as the president of a Hindu temple in Dhilwan Village in Punjab. There was a dispute between the Congress Party and the SAD over the presidency. SAD was the ruling party in Punjab. They targeted JS. The Applicant was also targeted because he was close to JS. The SAD people started their harassment in 2009. One of their enemies was called Avinash Chander (“AC”).
5. The Applicant had been attacked several times and injured though not seriously. In the last attack, the Applicant was with VK. The Applicant managed to escape. He later heard VK was injured and died subsequently.
6. The Applicant did not complain to the police because SAD was the ruling party in Punjab. He feared the police would arrest him for some false accusations.
7. The Applicant had stayed away from home after the last attack. He learnt his enemies and the police had gone to his home to look for him.
8. The Applicant lived in different places. He finally left India on 7 May 2011. He arrived in Hong Kong as visitor on the next day. He did not seek asylum immediately. He told the immigration officer that he came for sightseeing.
9. The Applicant began overstaying in Hong Kong from 23 May 2011. He was arrested by the police on 9 July 2011. On 11 July 2011, he raised a torture claim.
10. The Applicant said the India police would not help him because SAD was the ruling party in Punjab. SAD was also in alliance with the Bharatiya Janata Party (“BJP”). BJP had a national network and could help the SAD people to track him down in India.
11. 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 rejected 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].
12. On 25 May 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
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 case on a rehearing basis.
14. In Re Moshsin Ali, the Court of Appeal states that “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]
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
16. In his decision dated 21 August 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s claim with respect to those three applicable grounds.
17. In his further decision dated 2 December 2016, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant’s claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed him on 6 March 2017 and 10 March 2017.
19. The Adjudicator found inconsistent and unconvincing features in the Applicant's allegation. He also noted the Applicant did not seek protection when he landed in Hong Kong in May 2011 but only after his arrest in July 2011. The Applicant told the immigration officer when he entered Hong Kong that he came for sightseeing. The Adjudicator did not accept the Applicant's explanation that he was afraid at that time of being sent back so he lied then. The Adjudicator did not accept the Applicant was a genuine non-refoulement protection seeker facing any real or immediate risk. He found the Applicant incredible.
20. Even on the Applicant's account of events, the Adjudicator considered the alleged dispute was only private in nature. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no state involvement, consent or acquiescence. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. The Adjudicator considered relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available to the Applicant in any event. The Adjudicator did not accept the alleged enemies had interest to locate the Applicant outside Punjab. Internal relocation was viable in the Applicant's case.
21. On 19 April 2018, the Adjudicator rejected the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
22. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
23. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
24. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
25. The hearing took place on 6 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
26. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add to those grounds.
27. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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]
30. The Applicant said he did not have legal representation for his appeal. He had been represented by the Duty Lawyer Service up to the Director's decision dated 21 August 2015.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. The Applicant raised his language problem. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]
33. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
34. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
35. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
36. The Applicant stated in his affirmation that the appeal bundle was served on him on 27 March 2017 before the Board hearing. The Board hearing was scheduled for 6 March 2017 so the Applicant must be referring to 27 February 2017 rather than March. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
37. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
38. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
39. The Applicant said he answered all the questions honestly in the Board hearing.[12] That means he knew what was asked and how to answer. He was not confused.
40. There was no evidence the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay.
41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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
42. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 20th day of August 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
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 20/8/2019
Bhupinder Kumar
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 20/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2162/15/9/15/IN446
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 599/15 & RBCZ/9000823/16 (formerly RBCZ/769/11)
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).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 8 on page 3.
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