XIE JING FENG v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 378/2018

[2019] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 378 of 2018

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:

1.  The applicant was born in China in 1957 and later became a member of an underground Christian group which was frequently harassed by police.  In 1998 he left for Canada where he applied for refugee status, and in 2001 was granted Canadian citizenship.

2.  In November 2008 he went to India for business where he was arrested by police for possession of dangerous drug, and for which he was interrogated for several days during which he was allegedly tortured and was forced to confess to the offence of drug trafficking in India.

3.  On 26 November 2008 he was then taken to the Baroda Central Prison where he was detained for the next three years, during which he was also being discriminated and harassed by the majority Hindu and Muslim inmates for being a Christian, and was constantly in fear of being seriously harmed or killed by them.

4.  In April 2011 he managed to escape from prison and made his way to Nepal but was subsequently arrested by the Nepali police for alleged drug trafficking.  At the detention centre where he was held, he was approached by an agent who offered to provide him with a Malaysian passport with a different name, and with which he was able to leave Nepal for Bangkok where he stayed for two weeks, and on 20 November 2011 he travelled to Shekou in China transiting through Hong Kong, but when he was refused entry to Shekou he was sent back to Hong Kong where he was also refused entry but was arrested for possession of the forged Malaysian passport, for which he was subsequently charged and sentenced to eight months’ imprisonment.

5.  Shortly after completing the sentence on 30 April 2012, he was arrested by police again for money laundering and was subsequently convicted and sentenced to four years and four months’ imprisonment on 23 August 2013.

6.  In March 2015 the Indian authorities submitted an extradition request against the applicant, and hence upon his release from prison on 21 March 2015, he was arrested by police and detained in the Lai Chi Kok Reception Centre, during which he raised a non-refoulement claim for protection with the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”) on the basis that if extradited to India he would face unfair judicial process, that he would be harmed or killed by those persons who assisted his escape from the prison in India to avoid exposure of the plot, that he might be harmed or killed by police taking revenge because of his escape or for attempting to escape again, and that if he was deported to Canada he would face another extradition proceeding and ultimately end up in India again.

7.  By a Notice of Decision dated 23 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the risk of harm from the Indian authorities to the applicant upon his extradition to India as low and mere speculation on his part, that reliable and objective Country of Origin Information (“COI”) revealed reforms in prison conditions and the justice systems which did not support the applicant’s fear that the Indian authorities or the courts would fail to discharge their duties of administering justice, and concluded that his claim failed on all then applicable grounds.

9.  On 2 December 2015 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 10 August 2016 before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 12 August 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In the Board’s decision (“First Decision”) the adjudicator held that the extradition request by the Indian government was not a consideration of the Board which would only deal with non-refoulement claim to the applicant’s home country in Canada, but did nevertheless go on to consider the applicant’s non-refoulement claim in relation to India, and dismissed his appeal after considering his credibility, various COI and additional documents produced by him.

11.  On 11 November 2016 the applicant filed his Form 86 under HCAL 202/2016 for leave to apply for judicial review of the Board’s First Decision on the grounds that the adjudicator erred in law in holding that the extradition request by the Indian government was not a consideration of the Board which would only deal with non-refoulement claim to the applicant’s home country ie Canada.

12.  On 28 June 2017 his application for leave to apply for judicial review was refused by Li J who accepted that the adjudicator had erred in law in holding that the extradition request by the Indian government was not a consideration of the Board which would only deal with non-refoulement claim to the applicant’s home country in Canada, but found that this error was academic as the adjudicator did go on to consider his non-refoulement claim in relation to India and was correct to dismiss his claim on the basis that his account was not credible, and that in the absence of any error of law or procedure in the Board’s decision that the applicant’s claim was not reasonably arguable.

13.  On 30 June 2017 the applicant filed a notice of appeal to the Court of Appeal under CAMP 28/2017 against His Lordship’s decision, and advanced the following grounds of appeal:

(1)  that the adjudicator erred in law and interpretation of the CAT Convention;

(2)  that the Director and the adjudicator failed to attain high standards of fairness in assessing his non-refoulement claim;

(3)  that there were substantial grounds for believing that he would be in danger of being subjected to torture if extradited to India;

(4)  that there were inherent conflict of interest and lack of impartiality and independence in the assessment of his claim by the Immigration Department;

(5)  that the Director and the Board failed to properly investigate and obtain relevant COI on the general condition and state of affairs of India;

(6)  that the Board’s decision was not Wednesbury reasonable; and

(7)  that the appeal involves matters of great and general importance and substantial injustice had been done.

14.  On 13 March 2018 the Court of Appeal (Cheung and Kwan JJA) found none of these grounds reasonably arguable and dismissed his appeal, while his subsequent Notice of Motion for leave to appeal to the Court of Final Appeal out of time was also refused by the Court of Appeal (Cheung, Yuen and Kwan JJA) on 23 August 2018 when his arguments were found to be merely repetitions of those already advanced before and which had all been properly considered by the Director and the Board as well as by the Court of First Instance and the Court of Appeal as not reasonably arguable.

15.  It is against this background of the applicant’s case that I now turn to his application before me for leave to apply for judicial review of a second decision of the Board in dismissing his appeal against the Director’s Further Decision for rejecting his claim under BOR 2 risk in the following circumstances.

16.  Whilst the applicant was in the process of seeking leave from Li J to apply for judicial review of the Board’s First Decision, the Director on 27 January 2017 on his own initiative wrote to the applicant inviting him to submit additional facts which may be considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

17.  Upon receiving and considering two further submissions with additional information and documents provided by the applicant through his lawyer, the Director by his Notice of Further Decision dated 29 March 2017 rejected his claim under BOR 2 risk.

18.  In his Further Decision the Director found that the facts of the applicant’s case did not engage BOR 2 (2) to (6) of HKBOR in relation to death penalty and genocide, that he failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 (1), and that it was not accepted that there is any non-refoulement obligation arising from BOR 11 raised by the applicant in his further submission as they are not considered by the Court to be non-derogable or absolute rights under the HKBOR.    

19.  On 11 April 2017 the applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 1 December 2017 before the same adjudicator with legal representation from DLS when it was agreed that there were no new facts since the last hearing before the Board on 10 August 2016, and that arguments were made on his behalf only regarding BOR 2 risk in that there would be long delay for him to be brought to trial in India if extradited and hence would so be denied of justice, as a co-defendant of his had been remanded in custody for eight years and still not been tried, which would also happen to the applicant as well and so he would “rot in prison”.  

20.  On 13 December 2017 his appeal was dismissed by the Board which also confirmed the further decision of the Director.  In its Second Decision the Board found the applicant’s first argument of long delay before trial of no merit and that it was due entirely to his own making by his escape from custody from India as well as his various actions in Hong Kong to delay his own extradition, while his second argument was based on bare hearsay and was entirely speculative unsupported by reliable COI, and concluded that the applicant failed to establish a case under BOR 2 risk.

21.  On 8 March 2018 the applicant, by then no longer legally represented, filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board in rejecting/dismissing his claim under BOR 2 risk, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge of which, together with his subsequent supplementary submissions with supporting documents filed on various occasions totaling more than 100 pages and mostly hand written in confusing and illegible manner, I have endeavored to summarize as follows:

(1)  that the adjudicator had already erred in law in the Board’s First Decision;

(2)  that the adjudicator failed to properly consider the COI in his assessment of the applicant’s BOR 2 risk;

(3)  that the adjudicator erred in finding that the applicant had not been arbitrarily detained in India and that his assessment of the prison conditions in India was not Wednesbury reasonable;

(4)  that there was bias and conflict of interest for the same adjudicator to deal with his appeal as to his claim under BOR 2 risk after having erred in his dismissal of his first appeal;

(5)  that the adjudicator’s decision based on the COI was Wednesbury unreasonable; and

(6)  that there was procedural impropriety in the adjudicator’s reliance of the COI in the assessment of his claim.

22.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

23.  As regard the Board’s Second Decision, Ground (1) is a repetition of the applicant’s complaint against the adjudicator in the Board’s First Decision and has already been properly dealt with by both Li J and the Court of Appeal as academic in their earlier decisions, and in my judgment has no relevancy to his present claim under BOR 2 risk.  The same can be said about his Ground (4) as mere speculative in the absence of any evidence of bias or prejudice of the adjudicator.  As such I do not find either grounds reasonably arguable, as previously held by the Court of Appeal for similar reasons in paragraph 6.6 of its judgment:

“ This point [Inherent conflict of interest, lack of impartiality and independence] is not reasonably arguable. We do not accept that conflict of interest existed by reason of the fact that the Immigration Department was duty bound to enforce its immigration policy. The USM is the objective safeguard. It was introduced by reference to the requirement of high standard of fairness and other human rights safeguards as pronounced by the highest Court of Hong Kong. Neither is it reasonably arguable that the Director and the Adjudicator were bias towards the applicant.”

24.  As for the applicant’s complaints under Grounds (2), (3), (5) and (6) which all refer to the adjudicator’s reliance on COI in the consideration of his BOR 2 risk if extradited to India to face possible trials and consequential prison conditions, many of his submissions were either mere repetitions of his arguments previously made before Li J and the Court of Appeal, or were just citation of various authorities which were not factually entirely relevant or applicable to his case under BOR 2 risk, while I found that the adjudicator did properly consider the relevant COI and correctly arrived at his findings and conclusion as set out in paragraphs 9.4 – 9.11 of his decision that the applicant failed to establish his case under BOR 2 risk.

25.  The applicant had in fact advanced similar grounds before the Court of Appeal but all of which were rejected for the following reasons stated in its judgment:

“ 5)  Failure of the Director and Adjudicator to investigate and obtain relevant information on the general conditions and affairs of India

6.7  This is not reasonably arguable.  Both the decisions of the Director and Adjudicator contained a list of references which clearly showed the extent of the investigation by the Director and Adjudicator about the relevant condition of India by reference to its penal system, prison system, human rights conditions.

6)  Decision of TCAB being ‘Wednesbury’ unreasonable

6.8  This is not reasonably arguable.  Despite the error of law by the Adjudicator, the finding of fact cannot be said to be ‘Wednesbury’ unreasonable when the Director had in the first instance come to the same view on credibility concerning the applicant’s claim for torture and ill-treatment.”

26.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

27.  In the applicant’s case, the Director for his thorough and detailed analysis and reasoning as set out in paragraphs 4 – 14 of his Further Decisions found the applicant to have failed to establish a personal or real risk of his absolute and non-derogable rights including right to life under BOR 2 risk being violated upon his extradition to India, which decision was then confirmed by the Board in its Second Decision after the applicant had been given another opportunity to establish his case at another oral hearing with legal representation before the adjudicator with additional arguments and submissions being made on his behalf, with both the Director and the adjudicator having taken into account all the relevant COI in assessing his BOR 2 risk, and having proceeded to consider their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises I do not find any of his grounds reasonably arguable.

28.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave 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