LAKHWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL320/2018

[2020] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 320 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is an Indian national. He arrived in Hong Kong on 6 August 2014 and at the airport he was not permitted to land. He lodge a non-refoulement claim on the same day.

3.  In his statements given to the Director and the Board, he claimed that if he returned to India, he would be harmed or killed by Bikramjit Singh Majithtia (“BS”) and his followers in his locality, members of the Shiromani Akali Dal Party (“SAD”), a political party in India because of his political dispute with them during the period of the Punjab Parliamentary Constituency Election held in 2014.

4.  The incidents happened in 2014 during an election campaign for the position of Member of Parliament. SAD sent some people to him to persuade him to join them. He refused. They were angry and pushed him. He suffered redness and swelling and injuries on his feet. He had to stay in hospital for one week. He reported this matter to police. The police took no action. On the election day, there was a fight between members of the Congress Party and SAD people. The police came to arrest the Congress party people, including himself. They did not arrest the SAD people. Inside the police station, the police officers asked him to join SAD. He refused. The police officers threatened him that they might frame up a drug trafficking case against him. He was slapped and punched in the police station. He suffered bruises and wounds on his forehead. He reported to other police stations, but they did not take up his case. He was concerned for his safety and he decided to come to Hong Kong.

The Director’s Decisions

5.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 3 October 2014 (“the Director’s Decision”), the Director rejected his claim on 5.a. c. and d. for the reason that his claim was not substantiated.

7.  By Notice of Further Decision dated 9 November 2017 (“the Director’s Further Decision”), the Director rejected his claim on 4.b. for the same reason. The Director’s Decision and the Director’s Further Decision are collectively called (“the Director’s Decisions”).

The Board’s Decision

8.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 17 July 2015 and 6 November 2015 respectively.

9.  The Board had considered his case and it seems that it did not question the applicant’s stories. On that basis, it found that it was almost four years since the last election in March 2014. If the appellant were to return to India and if he desisted from taking any part in the politics of that area, he should be able to remain safe because the SAD people would have no reason to fear for his return and harm him. If, however, he indulged in a purely political tussle against the SAD, he should not have any reasons to fear that the SAD people would take any drastic action against him, like killing or wounding him [19]. In any event, the Board found that the option of relocation was available to him [31].

10.  In his Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

11.  In his affirmation in support of his application dated 28 February 2018, the applicant relied upon the following grounds:

1.     no legal representation for his appeal to the Board;

2.     no assistance was given to him on the language as he does not speak or understand English;

3.     violation of high standard of fairness as set out in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFA 187;

4.     he did not receive the Director’s letter for additional information for assessment of BOR 2 risk;

5.     the Director did not explain his balance of exercise in adopting the COI rejecting his claim;

6.     the Board did not give any proper explanation to refuse his claim, in particular, the Board should not consider that if he desisted from taking any part in the politics of that area, he should be safe. The Board ignored the fact that he had had political activities whilst he was in his country. The Board should have found that he was subject to Persecution risk under RC.

DISCUSSION

The Director’s Decisions

12.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

15.  The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

16.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board. He disagreed with the Board’s Decision.

17.  It is obvious that the Board did not reject the applicant’s facts of his case. The question is on the application of the statutory provisions and the Conventions on the facts accepted.

18.  Grounds (1) fails as the Court of Appeal had held that the applicant had no absolute right of free legal representation on every stage of the proceedings. He had already had legal representation for the screening. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

19.  The Court of Appeal in Re Khan MD Omar, [2019] HKCA 803 at paragraph 18 held that lack of language assistance is not a ground for judicial review.

20.  Ground (3) is his opinion without any evidence to support it.

21.  Ground (4) is his bare allegation. He confirmed that he had adopted this address for all letters. He received all other letters except the letter from the Director for further information for the assessment of BOR 2 risk. He offered no explanation for this situation. In the circumstances, this Court does not accept that he did not receive the said letter. The letter was deemed to be served on him at his last known address. In any event, he had not put up any particular further information at the hearing before this Court to demonstrate that with those additional information, the Director’s Further Decision might be wrong.

22.  Ground (5) fails because the Director had demonstrated in his Decision that he had considered the COI. He had his discretion to accept or reject the evidence in his assessment of the applicant’s case. Obviously, he had applied his common sense and professional knowledge in his determination.

23.  The applicant may have a point for argument that the Board should not rely upon his future conduct if he returned to India to determine that he would not be subject to persecution because he had taken part in political activities before. The rival party may target him for his previous political stance. However, the Board also found that he could relocate internally himself in other parts of India [31]. Even if the applicant were subject to Persecution risk under RC, he cannot apply for asylum if internal relocation option is available to him. The Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 held:

“On the question of internal relocation, if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. [32]”

24.  Ground (6) therefore fails.

25.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

26.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

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