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HCAL124/2018
[2018] HKCFI 1677
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 124 of 2018
BETWEEN
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Amarjeet Singh |
Applicant |
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and |
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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 23 (DOB: 4 March 1995).
2. The Applicant claimed he would be killed by members or supporters of the Indian National Congress (“INC”, also called the Congress Party).
3. The Applicant said his father was a supporter of the Bhartiya Janata Party (“BJP”). His father was a reputable and influential man in the local area. The Applicant himself started supporting BJP in 2009 when he was about 14 years old.
4. There were conflicts between BJP and INC. In March 2011, four men pulled the Applicant out of the bus. They said his father should not support BJP. They assaulted the Applicant and threatened to kill him. The Applicant managed to escape in the midst of chaos. He was only slightly injured. The Applicant suspected those men were from INC to force his father to leave BJP. However, his father told him not to report the matter to the police.
5. In December 2011, two men asked the Applicant if he would join INC. The Applicant refused. The men then hit him and left. This time, the Applicant made a report to the police but the police considered there was not enough information to register a report. The Applicant believed the police were showing favour towards INC.
6. In July 2012, some men approached the Applicant and his father. They threatened to kill the Applicant and his father. They said the latter should not support BJP anymore. Some passers-by came to intervene and the men fled. The matter was reported to the police but the police made no proper investigation.
7. The Applicant’s father was worried. He sent the Applicant to a place called Pradesh. The Applicant went into hiding there for a year. He learnt the INC people were still looking for him and actually knew of his whereabouts.
8. The Applicant’s father then sent the Applicant to Thailand in May 2013. The Applicant also travelled to Myanmar and Indonesia. He said there was no asylum mechanism in Thailand or Myanmar and he did not know how to seek protection in Indonesia. The Applicant returned to India in August 2013 and lived in Hyderabad. After staying there for three months, he was arranged by his father to come to Hong Kong.
9. On 7 November 2013, the Applicant left India for Hong Kong with a friend by air. They did not enter Hong Kong immediately but went to Macau. The Applicant finally entered Hong Kong on 9 November 2013 as visitor. He was allowed to stay for 14 days. He however overstayed and was arrested by the police on 6 December 2013. He sought non-refoulement protection subsequently.
10. The Applicant said INC was a national political party and had extensive connections in India. The police were also under their influence. The Applicant thought reasonable state protection and internal relocation were not available to him. He also claimed he was a Sikh and it would not be safe for him to live in terrorist-plagued areas like Jammu 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 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 26 January 2018, the Applicant applied for leave for judicial review.
Chronology of events
13. Things happened in this order: –
| 2013-11-7 |
The Applicant left India for Hong Kong. He did not enter Hong Kong but went to Macau. |
| 2013-11-9 |
The Applicant entered Hong Kong as visitor. He was allowed to stay until 23 November 2013. He overstayed after the expiry of his 14-day visa. |
| 2013-12-6 |
The Applicant was arrested by the police. |
| 2013-12-20 |
The Applicant raised a non-refoulement claim. |
| 2016-2-22 |
The Director interviewed the Applicant. |
| 2016-6-17 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk). [‘the Director's decision”] |
| 2017-6-22 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-6 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-10 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [‘the Director's further decision”] |
| 2017-11-17 |
The Applicant appeared before the Board for appeal. |
| 2018-1-19 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [‘the Board's decision”] |
| 2018-1-26 |
The Applicant applied for leave for judicial review. |
Respondents
14. 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 complaint on a rehearing basis.
15. 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.
16. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
17. In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 26 January 2018. However, the Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its appeal decision on 19 January 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 26 January 2018; the application against the Board's decision was made in time.
Director of Immigration (the Director)
18. In the Director’s decision dated 17 June 2016, the immigration officer did not make specific findings on the Applicant’s credibility although he considered many allegations by the Applicant were unreasonable. However, even on the strength of the Applicant's claim the officer found the level risk of harm against the Applicant by his alleged enemies was low. The officer did not accept the alleged enemies would harm or kill the Applicant. He also found the Applicant's complained situation was not instigated, consented or acquiesced by the India state or officials or persons acting in official capacity.
19. The officer was aware there were reports of corruption and ineffectiveness relating to the India police. However, there was also objective country-of-origin information (“COI”) showing ongoing reforms and improvements in the country. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
20. The officer did not accept there was any real torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
21. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the last applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.
22. In the Director’s further decision dated 10 July 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the last applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
23. The Adjudicator noted many inconsistencies in the Applicant’s claim. She found the Applicant's evidence was indirect and vague. There was no supporting proof. The Adjudicator was not satisfied the Applicant was a credible witness. She did not accept the Applicant's claim.
24. The Adjudicator found the Applicant failed to establish any real risk that warranted non-refoulement protection. She refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
25. In his affirmation, the Applicant had these complaints: –
(a) lack of legal representation;
(b) lack of language assistance;
(c) lack of fair hearing.
Court hearing
26. In Form 86, the Applicant requested a hearing. The hearing took place on 7 June 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.
27. The Applicant said he knew little English. His friends helped him to prepare Form 86 and the affirmation for the current application. The Applicant confirmed all the grounds of judicial review were in the documents.
28. The Applicant also confirmed that he had submitted everything to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. 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]
Lack of legal representation
31. The Applicant complained he had not been provided with legal assistance after the Director's decision coming out on 17 June 2016. He had legal assistance from the Duty Lawyer Service till then.
32. 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.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
Lack of language assistance
33. The Applicant complained he had not been given sufficient interpretation/translation assistance.
34. In court, the Applicant said he had friends who knew English to help him to prepare Form 86 and the affirmation for the current application of judicial review. I am sure the Applicant could seek assistance at all material times of his claim. He had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. His suspicion that the interpreter had not properly translated the basis of his claim in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint.
Lack of fair hearing
35. The Applicant criticised the Director’s absence from the appeal hearing before the Board on 17 November 2017.
36. The Applicant failed to show how the Director’s absence would prejudice his appeal. Again, this is not a proper ground of complaint.
37. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
38. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 30th day of July 2018
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(Alan Ngan)
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 his 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 30/7/2018
Amarjeet 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 30/7/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4000/16/6/190/IN920
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1569/15 & RBCZ 9001996/17 (formerly RBCZ 1122/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
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