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HCAL385/2018
[2018] HKCFI 2578
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 385 of 2018
BETWEEN
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Shamsher Singh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 31 (DOB: 20 April 1987).
2. The Applicant claimed he would be harmed or killed by Kashmir Singh (“KS”). KS was a rich man and a member of the village council. He was also a supporter of the Shiromani Akali Dal Party (“SAD”). He owned a piece of land next to the land belonging to the Applicant's father. There had been disputes between both sides since 2009.
3. In 2011, the village council election took place. KS was a candidate. The Applicant did not support him. Instead, he canvassed actively for another candidate who stood for the Congress party (“CP”).
4. In November 2011, KS went with some armed men to confront the Applicant and his father and brother. KS claimed part of the Applicant’s land belonged to him. There was a heated argument between both sides. The Applicant was assaulted by KS’ men. He was injured but not seriously. The Applicant believed that KS ordered his men to assault him was really because he had not supported KS in the village council election.
5. The matter was reported to the village head, who called for a meeting. However, KS refused to attend.
6. Later, KS and his men damaged the crops grown on the land belonging to the Applicant’s family. The Applicant said KS did that to force his family to leave their land. A report was made to the police but the police took no action.
7. In late November 2011, the Applicant learnt KS was going to kill him because he had opposed KS in the village council election. The Applicant was scared so he relocated himself to Ludhiana. He stayed there for two months and returned home in early February 2012.
8. On a few occasions, the Applicant was pushed from behind by someone who immediately ran away. The Applicant did not know who pushed him but he believed KS wanted to kill him.
9. The Applicant was advised by his father to leave India for safety. On 28 February 2012, he left the country and arrived in Hong Kong on the next day as visitor. He was allowed to stay until 14 March 2012. However, he overstayed. He was arrested by the police twenty months later on 20 November 2013. The Applicant raised a non-refoulement claim subsequently.
10. While he was in Hong Kong, the Applicant was told by his father that the enemies kept looking for him.
11. Although CP won the election and became the ruling party in Punjab in 2017, the Applicant said it was still dangerous for him to go back because his enemies were powerful. He said the land dispute between his family and KS still dragged on. Although the case had gone to the court in India, the result was not yet known.
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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 9 March 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2012-2-28 |
The Applicant left India. |
| 2012-2-29 |
The Applicant entered Hong Kong as visitor. He was allowed to stay until 14 March 2012. However, he did not leave the territory. |
| 2012-3-15 |
The Applicant began overstaying in Hong Kong. |
| 2013-11-20 |
The Applicant was arrested by the police. |
| 2013-11-23 |
The Applicant raised a non-refoulement claim. |
| 2015-11-13 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director’s decision”] |
| 2017-5-25 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-6-8 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-4 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”] |
| 2018-1-9 |
The Applicant appeared before the Board for appeal. |
| 2018-3-2 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-9 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
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 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]
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
18. In the Director's decision dated 13 November 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 claim with respect to those three applicable grounds.
19. On 4 July 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. He appeared in person before the Adjudicator on 9 January 2018.
21. The Adjudicator found the Applicant first told the Director in his written representation this: “I have political dispute with Mr. Amarpal Singh ‘Bony’. He belong to Akali Dal the party in power. He hit me and threaten to kill me…” However, in his later non-refoulement claim form (“NCF”) completed with the assistance of the Duty Lawyer Service (“DLS”) the Applicant did not say he had personal contact with ‘Bony’. The Applicant explained to the Adjudicator that he once saw ‘Bony’, who threatened him from his stopped car. The Adjudicator pointed out to the Applicant that this was not disclosed in his NCF or the Director’s interview either. The Applicant replied he had provided all the information to DLS and in the Director’s interview. The Adjudicator did not accept the Applicant's explanation for the inconsistencies. He found the Applicant invented information to advance his claim. The Adjudicator did not accept the Applicant's allegations. The Adjudicator found there was no proof to support the Applicant's claim that KS had tried to kill him. He did not accept the Applicant had ever been attacked or threatened by KS or his men. The Adjudicator found the Applicant failed to prove any risk that warranted non-refoulement protection.[6]
22. On 2 March 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
23. In his affirmation and Form 86, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
24. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
25. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
26. The hearing took place on 10 July 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
27. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds.
28. 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
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’.[7] 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.” [8]
31. The Applicant mentioned he was not legally represented during the appeal stage. He had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 13 November 2015.
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.[9] 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.
33. The Applicant raised his language problem. In the current application, a friend helped him 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. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
34. The Applicant complained he received the appeal bundle on 2 January 2018, only seven days before the Board hearing scheduled for 9 January 2018.
35. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
36. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
37. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
38. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
39. The Applicant said he answered all the questions honestly in the Board hearing.[12] That would mean he knew well what was asked and how to answer. He was not confused.
40. The Applicant complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay. The Applicant failed to be specific and there was no evidence of such complaint.
41. 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 of the case. 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. None of the Applicant’s complaints is substantiated.
Conclusion
42. 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 12th day of December 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
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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 12/12/2018
Shamsher 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 12/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2609/15/11/121/IN561
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1430/15 & RBCZ 9002015/17 (formerly RBCZ 921/14)
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] The Board's decision, paras 41-56.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Applicant's affirmation, Point 8 on page 4.
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