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HCAL907/2018
[2019] HKCFI 873
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 907 of 2018
BETWEEN
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Preety Pal Singh
@Pretty Pal Singh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
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 26 (DOB: 28 July 1992).
2. The Applicant claimed he would be harmed or killed by Parminder Singh (“PS”). He had conflicts with PS and also knocked down PS in a traffic accident.
3. The Applicant supported the Akali Dal Party (“ADP”) while PS belonged to the Congress Party (“CP”). In a village election in 2013, the Applicant argued with PS. They had to be separated. The Applicant later left home for a few months to avoid PS. Then he returned home.
4. A month later, the two sides had a fight. The Applicant was injured. His father complained to the police twice.
5. The Applicant learnt from his father that the police took no action. The Applicant did not approach the police himself or seek help from other authorities.
6. In early 2014, the Applicant's father arranged for an elders’ meeting to settle the matter. PS apologized to the Applicant.
7. In October 2014, the Applicant drove a tractor and knocked down PS’s motorbike accidentally. PS was not injured. The Applicant was so scared that he ran away from the scene. PS went to the Applicant's home. He assaulted the Applicant and threatened to kill him.
8. The Applicant did not report the accident or PS’s assaulting him to the police. He believed the police would not help him because they only helped rich and influential people.
9. In November 2014, PS went to the Applicant's fields to assault him. The Applicant was injured. Again, he did not complain to the police.
10. The Applicant left home to live in a relative’s place. He got threatening phone calls from PS. PS said he knew where the Applicant was staying.
11. In February 2015, the Applicant returned home to take care of his fields. A few days later, he was assaulted by some people. Again, the Applicant made no complaint to the police. His family soon made arrangement for him to leave India.
12. The Applicant arrived in Hong Kong on 19 March 2015. He was refused permission to land. Then he raised a non-refoulement claim.
13. The Applicant said state protection and internal relocation were not available to him because PS was influential and had connection with the authorities.
14. 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].
15. On 23 May 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2015-3-19 |
The Applicant tried to enter Hong Kong as visitor. He was refused permission to land. |
| 2015-3-20 |
The Applicant raised a non-refoulement claim. |
| 2015-6-5 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk (iii) BOR3 risk. [“the Director's decision”] |
| 2017-5-18 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-1 |
The Applicant failed to supply additional facts by the deadline or thereafter. |
| 2017-6-19 |
The Director refused the Applicant’s claim with respect to BOR2 risk. [“the Director's further decision”] |
| 2018-2-15 |
The Applicant appeared before the Board for appeal. |
| 2018-5-8 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-5-23 |
The Applicant applied for leave for judicial review. |
Respondents
17. 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.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
19. 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] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
20. In his decision dated 5 June 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 refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
21. In his further decision dated 19 June 2017, the Director refused the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed him on 15 February 2018.
23. The Adjudicator found the Applicant’s claim lacking details in a number of places. There were also inconsistencies. The Adjudicator considered the Applicant’s saying that he was ignored by the local police was only hearsay. The Applicant himself had not complained to the police or other authorities. The Adjudicator found the Applicant was not targeted by the state. There was no state instigation or state acquiescence of any kind. PS was not acting in any official capacity though he was affiliated with CP. The Adjudicator also found the Applicant had not been inflicted with physical/mental suffering to the minimum level of severity. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event.
24. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 8 May 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
25. The Applicant complained he had no legal representation after the Director's decision dated 5 June 2015. There was no translation of the Director's letter inviting him to submit additional information for the consideration of BOR2 risk. The Applicant said the Director should refer his case back to the Duty Lawyer Service in relation to BOR2 risk.
26. The Applicant further said he only lodged his appeal against the Director's decision dated 5 June 2015. The Director's decision on BOR2 risk only came out on 19 June 2017. He had not filed any grounds of appeal in relation to BOR2 risk. It was thus irregular for the Adjudicator to include BOR2 risk in his appeal decision.
Court hearing
27. The hearing took place on 24 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
28. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.
29. 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
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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]
32. The Applicant raised his language problem. He complained there was no translation of the Director's letter inviting him to submit additional information for the consideration of BOR 2 risk.
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. The Applicant had much exaggerated his language problem.
34. The Applicant said the Director should refer his case back to the Duty Lawyer Service in relation to BOR2 risk. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 5 June 2015. There was no evidence he reapplied for legal assistance from the Duty Lawyer Service afterwards.
35. The Applicant could not sit back and expect the Director to refer his case to the Duty Lawyer Service again for legal representation. He did not respond to the Director's request for further information for the consideration of BOR2 risk. The Director could not be expected to request the Duty Lawyer Service to act for the Applicant in such circumstance.
36. 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 how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
37. The Applicant further said he only lodged his appeal against the Director's decision dated 5 June 2015. The Director's decision on BOR2 risk only came out on 19 June 2017. He had not filed any grounds of appeal in relation to BOR2 risk. It was thus irregular for the Adjudicator to include BOR2 risk in his appeal decision.
38. The Director in paragraph 8 of his further decision dated 19 June 2017 clearly told the Applicant that as his appeal (against the Director's decision dated 5 June 2015) was still pending determination, the Adjudicator would determine his appeal on all applicable grounds in one go and there was no need for the Applicant to file separate further petition to the Board.
39. The Adjudicator could and should consider the Applicant's claim with respect to all the four applicable grounds including BOR2 risk. The Applicant's complaint was frivolous.
40. 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
41. 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 for judicial review.
Dated the 4th day of April 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 4/4/2019
Preety Pal Singh@Pretty Pal 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 4/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 1758/15/6/144/IN387
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 648/15 & RBCZ 9001881/17 (Formerly RBCZ 200/15)
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.
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