RANDHIR SINGH v. MS JANE CURZON LO

HCAL193/2018

[2019] HKCFI 133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 193 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 be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

APPLICATION

1.  This is the applicant’s application for leave for judicial review of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as the interested party.

The Applicant

2.  The applicant came from India on 13 May 2012 and he was permitted to stay as a visitor until 27 May 2012. He overstayed without permission from the Director. He was arrested by police on 8 February 2014 and was then handed over to the Immigration Department for investigation. On 10 February 2014 he lodged his claim for non-refoulement. ^[1]

The grounds of non-refoulement protection

3.  The applicant claims that if he is refouled to India, he will either be tortured or even killed by Mahinder Singh (“MS”), the village head of his village where he lived. This is because MS intended to take over the land jointly owned by himself and his brother. He refused to accede to MS’s request to surrender his land to him.

4.  In his statements given to the Director and the Board, he had set out four incidents in which MS had threatened him. In the 3^rd incident, his brother had tried to reason with MS, but was killed by his people. In the 4^th incident, he was attacked and injured. He had injuries on his forehead, nose and bruises on his body. He had to receive medical treatment in the hospital. Further, MS had threatened to kill him if he still refused to transfer the land to him. Therefore, he fled to Hong Kong.

The Director’s Decision

5.  The Director had considered the applicant’s application for non-refoulement by reference to the risks below:

a.  risk of torture under Part VII C 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.  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 two Notices of Decision respectively dated 11 July 2016 and 20 July 2017, the Director refused his application with reasons for his decision. These Decisions are respectively referred to as the Director’s Decision and the Director’s Further Decision, collectively called the Director’s Decisions.

Appeal to the Board

7.  By Notice of Appeal dated 18 July 2016, the applicant appealed against the Director’s Decisions to the Board. The applicant attended a hearing before the Adjudicator on 7 December 2017.

8.  By Decision dated 23 January 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decisions.

9.  The Adjudicator had tested his evidence which he gave to the Immigration officer. Having considered the evidence, the Adjudicator disbelieved the applicant’s story. See paragraph 12 of the Board’s Decision:

“By reason of the foregoing, I do not believe the Appellant and Amrik had purchased and owned the Land, or that MS and his men have killed Amrik.”

Application for leave for judicial review

10.  By Form 86 under Order 53, rule 3(2) of the Rules of the High Court dated 8 February 2018, the applicant applied for leave for judicial review of the Board’s Decision. He had filed an affirmation with a 22-page grounds in support of his application in narrative form. I shall summarize the specific grounds below:

(a)  the hearing was unfair and the Adjudicator had failed to meet the greater care and duty owed to him, a self-represented person;

(b)  hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(c)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(d)  he was confused at the appeal hearing;

(e)  the Adjudicator had not done sufficient research in the Country of Origin Information in relation to state protection and his knowledge was not updated;

(f)  the Adjudicator had relied upon hearsay information and outdated material in relation to Country of Origin Information;

(g)  the Adjudicator had given undue weight on the irrelevant material;

(h)  the Adjudicator was wrong in state protection in India;

(i)  the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

(j)  the applicant was not legally represented at the appeal hearing.

DISCUSSION

11.  The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

12.  The grounds under paragraph 10. a., e., f., g., and h. above are bare allegations or comments without particulars or facts to support. In my view, they do not constitute substantive grounds in support of the applicant’s application.

13.  As to paragraph 10. b., c., and d., at the hearing before myself, I specifically asked the applicant to tell me the reasons he complained that the Adjudicator was unfair. He said that he understood the questions as there was an interpreter at the hearing. He had answered all the questions and that his answers are true and correct. He explained that what he meant by saying that the Adjudicator was unfair was referring to her decision. He considered that she should allow his appeal.

14.  The applicant had not raised the issue of his psychological and psychiatric conditions at the hearing. He cannot complain against the Adjudicator for failing to call for the reports.

15.  It is fundamental that the applicant’s application depends on the facts that he had submitted to the Director and the Adjudicator as he had attended a hearing before her. The Adjudicator had said in her Decision that she had re-heard the matter herself. If the facts submitted are found not to be true or unreliable, all his claims must fail because there will be no basis for him to make such claims.

16.  In her Decision, the Adjudicator has analyzed the facts submitted by the applicant to her.^[2]

17.  She had also assessed the credibility of the applicant by reference to the incidents that the applicant had told her, applying her common sense and experience as an Adjudicator herself.

18.  The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers….” 

19.  At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

CONCLUSION

20.  Having considered the applicant’s grounds and for the reasons above, I find that there is nothing amiss in the Board’s Decision. The applicant fails to show that his judicial review has any reasonable chance of success. I refuse to grant leave to the applicant 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