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HCAL166/2018
[2018] HKCFI 1995
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 166 of 2018
BETWEEN
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Balkar Singh |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 27 (DOB: 16 July 1991).
2. The Applicant claimed he would be harmed or killed by his elder brother Jaskar Singh (“Jaskar”) and associates because of a land dispute.
3. The Applicant's father had some land. When he died, the land would go to his two sons (the Applicant and Jaskar) in equal shares.
4. Jaskar was associated with gangsters. He worked for Babbi, who was a member of the Legislative Assembly in the local area. Babbi belonged to the influential Indian National Congress Party (“INC”). Jaskar himself was also a supporter of INC.
5. Since 2014, Jaskar had been threatening the Applicant to give up the land he would inherit in case their father died. The Applicant refused.
6. Jaskar continued to utter threats that made the Applicant fear for his life. However, he did not report the matter to the police. He thought the police would not offer him assistance since Jaskar had the backing of INC.
7. The Applicant later raised the matter with his parents but they did not take him seriously.
8. In February 2015, the Applicant was attacked by Jaskar and his associates. He was injured. After receiving treatment, the Applicant left home and eventually moved to New Delhi.
9. On 4 May 2015, the Applicant left India for Hong Kong. He did not enter Hong Kong immediately but went to Macau first. Two days later, he entered Hong Kong from Macau. He was allowed to stay till 20 May 2015. He surrendered to the Immigration Department on the next day after his visa had expired. The Applicant later lodged a non-refoulement claim.
10. The Applicant had never reported his alleged fear to the India police. He said the police were corrupt. He did not think the India authorities would protect him.
11. The Applicant did not think internal relocation was viable. He said his brother had affiliation with INC and could find him anywhere in India.
12. 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].
13. On 5 February 2018, the Applicant applied for leave for judicial review.
Chronology of events
14. Things happened in this order: –
| 2015-5-4 |
The Applicant left India for Hong Kong by air. He did not enter Hong Kong immediately but went to Macau first. |
| 2015-5-6 |
The Applicant entered Hong Kong from Macau. He was allowed to stay till 20 May 2015. |
| 2015-5-21 |
The Applicant surrendered to the Immigration Department. |
| 2015-11-24 |
The Applicant lodged a non-refoulement claim. |
| 2016-11-28 |
The Director interviewed the Applicant. |
| 2016-12-7 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR 2 risk.) [“the Director's decision’] |
| 2017-10-31 |
The Applicant appeared before the Board for appeal. |
| 2018-1-26 |
The Board dismissed the Applicant's appeal with respect to all the four applicable grounds. [“the Board's decision’] |
| 2018-2-5 |
The Applicant applied for leave for judicial review. |
Respondents
15. 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.
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.
17. The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.
18. In Re Moshsin Ali, the Court of Appeal ruled “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]In light of such decision, the Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
Director of Immigration (the Director)
19. In the Director’s decision dated 7 December 2016, the immigration officer found the Applicant failed to adduce evidence to substantiate his allegations. However, even on the Applicant’s own account of events the officer found the level of risk of harm against the Applicant was low. The Applicant had not been inflicted with severe harm or suffering. His complained situation was not instigated, consented or acquiesced by the state. It was merely a private dispute between the Applicant and his elder brother Jaskar. There was no evidence any state agent or political party was involved.
20. The officer was aware there were reports of police corruption in India. However, there was objective country-of-origin information (“COI”) to show ongoing reforms in the country. There were avenues to seek justice and protection. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
21. The officer considered the Applicant failed to prove any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s claim with respect to all the four the applicable grounds.
TCAB/NCPO (the Board)
22. The Adjudicator accepted the Applicant’s allegation that his brother had threatened and attacked him. He considered the Applicant faced CIDTP risk (BOR3 risk) and life risk (BOR2 risk).[6] However, there was no torture risk or persecution risk.[7]
23. The Adjudicator had considered relevant COI and the Applicant's situation. He found it was not unreasonable or unsafe for the Applicant to relocate himself to other parts of India because the BOR3 risk and BOR2 risk he faced were localised to his home area, or at most within Punjab only. The Adjudicator did not accept that Jaskar could be assisted by Babbi or INC to track down the Applicant in the vast country of India. Therefore, despite there were BOR3 risk and BOR2 risk facing the Applicant, he was still not entitled to non-refoulement protection.[8]
Grounds of judicial review
24. In Form 86, the Applicant maintained he faced risks in his country. He complained the Adjudicator rendered unreasonable and unfair decisions against him. He accused the Adjudicator failed to give him sufficient time and chance to arrange evidence.
Court hearing
25. In Form 86, the Applicant requested a hearing. The hearing took place on 21 June 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.
26. The Applicant’s complaints in Form 86 were vague. In court, he was asked to elaborate the grounds of his application. The Applicant said the Adjudicator had not considered his claim carefully. He also said he had asked the Adjudicator for more time to get proofs from India but he could not specify what proofs they were. He merely said “whatever I could provide to prove my claim”.
27. The Applicant was asked why he could not have got hold of the alleged proofs earlier. He replied his family members in India could not help him and his only friend there was out of the country.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[9]
30. The Adjudicator considered the Applicant faced BOR3 risk and BOR2 risk but no torture risk and persecution risk. However, he found it was not unreasonable or unsafe for the Applicant to relocate himself to other parts of India because the BOR3 risk and BOR2 risk were localised to the Applicant's home area, or at most within Punjab only. The Adjudicator did not accept that Jaskar could be assisted by Babbi or INC to track down the Applicant in the vast country of India. Therefore, the Applicant was not entitled to non-refoulement protection. The Adjudicator had duly considered relevant COI and the Applicant's situation to come to such finding.[10] It was not Wednesbury unreasonable.
31. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence.
32. There was no record of the Applicant's having asked for time or adjournment before the Adjudicator to gather proofs from India. In court, the Applicant could not specify what proofs he was seeking to obtain then. He merely said “whatever I could provide to prove my claim”. That was vague.
33. The Applicant was asked why he could not have got hold of what he wanted earlier. He replied his family members in India could not help him and his only friend there was out of the country. That was unconvincing.
34. I do not accept the Applicant had been denied of any reasonable opportunity to gather proofs to substantiate his claim. I am sure the Applicant had been given reasonable and sufficient opportunities to prove his case fully.
35. The Applicant complained the Adjudicator had not considered his claim carefully and had rendered unreasonable and unfair decisions against him. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. There is no substance in the Applicant’s complaints. 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 report of the Adjudicator showed he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
36. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 3rd day of September 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 3/9/2018
Balkar 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 3/9/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2498/16 (formerly RBCZ 14355/15)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 5640/16/12/287/IN1164
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] CACV 54/2018, paras 31-45.
[6] The Board’s decision, paras 70 and 72.
[7] Ibid., paras 69 and 71.
[8] Ibid., paras 33 and 88.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] The Board’s decision, paras 73-88.
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