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HCAL 2880/2018
[2020] HKCFI 1867
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2880 of 2018
BETWEEN
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Daljeet Singh |
1st Applicant |
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Sandeep Kaur |
2nd Applicant |
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and |
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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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicants:
THE APPLICATION
1. The applicants are husband and wife. They have a daughter named Daljeet‑Singh Ekamjot, who was also a claimant for non-refoulement assessed by the Director of Immigration (“the Director”) and who appealed against the Director’s decision to the Board. She was also an applicant in Form 86. However, her name was deleted for reason beyond me.
2. This is the 1st and 2nd applicants’ joint application for leave to apply for judicial review of the Decision dated 9 November 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office. This is the Board’s further decision as it had made its first decision on 2 December 2016. These Decisions will be called (“the Board’s Decision”) and (“the Board’s Further Decision”) respectively.
3. The applicants also applied for leave to apply for judicial review of the Director’s Decision dated 17 April 2015. The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 at §45 held that the Director’s Decision is not subject to judicial review once the applicants had appealed his decision to the Board. There are no exceptional circumstances in this case. The Court will not entertain their application in respect of the Director’s Decision dated 17 April 2015.
4. The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with their joint application on paper.
5. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
6. The applicants are Indian nationals. They came to Hong Kong as visitors and overstayed since 6 June 2012. They surrendered to the Immigration Department on 18 June 2012. They lodged their non-refoulement claims separately and their applications were jointly assessed by the Director and the Board.
7. They claimed that if refouled, they would be harmed or killed by their family members because they had married despite objections from their families. The second applicant is of a lower caste. Her father and brothers had threatened her and assaulted her because of her relationship with the 1st applicant. The stories are set out in paragraph 3 of the Board’s Decision.
The Director’s Decisions
8. The Director considered their joint application in relation to the following risks:
a.risk of torture under Part VIIC 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.risk of persecution by 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”).
9. By Notice of Decision dated 17 April 2015 (“the Director’s Decision”), the Director refused their claim on the Torture risk, BOR 3 risk and Persecution risk for the reason that their claim was not substantiated. The Director found that their risk of being harmed or killed as they alleged if they returned to their country would be low [72]; that there was no state involvement and state protection would be available to them [102] and internal relocation was an option open to them [103].
10. By Notice of Further Decision dated 17 January 2017 (“the Director’s Further Decision”), the Director rejected their claim on BOR 2 risk because they failed to establish such risk by evidence [6].
The Board’s Decisions
11. The applicant appealed to the Board against the Director’s Decision. They did not attend the hearing on the scheduled date and time. They failed to respond to the Board’s request for explanation. The Adjudicator decided to consider their case by reference to the materials before him and the Director’s Decision.
12. The Board agreed with the Director’s decision and confirmed the Director’s Decision.
13. The Board did not hold a hearing for the applicants for their appeal against the Director’s Further Decision as the applicants did not provide Director with further information on BOR 2 risk. The Board dealt with their appeal on paper.
14. The Board also agreed with the Director’s Further Decision and rejected the applicants’ appeal.
Application for leave to apply for judicial review
15. The applicants filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Further Decision. But they have not set out any grounds in support of their joint application.
DISCUSSION
16. Although the applicants apply for leave to apply for judicial review of the Board’s Further Decision, the Court will consider the Board’s Decision as well because the Board had relied upon the facts of its first Decision to assess their appeal and made the Board’s Further Decision.
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The applicants did not explain why they failed to appear before the Board for their hearing.
18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. … 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.”
19. The Court notes that the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 at §20, which says that despite the applicants being absent at the hearing, it is incumbent upon the Board to consider the merits of their case. In this case, the Board had done so and came to its conclusions.
20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. There is no evidence that shows that the applicants have any reasonable chance of success in their intended judicial review.
CONCLUSION
22. I therefore refuse to grant leave for the applicants to apply for their intended judicial review. Accordingly, I dismiss their joint application.
Dated the 6th day of August 2020
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(Mike Mak) |
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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 the Applicant’s 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 6/8/2020
Daljeet Singh
(1st Applicant)
Sandeep Kaur
(2nd Applicant)
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 6/8/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1449/15/4/141/IN342;
USM 1450/15/4/142/IN343;
USM 1451/15/4/143/IN344;
BOR 813/17/7/3/IN210;
BOR 814/17/7/4/IN211; and
BOR 815/17/7/5/IN212
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1086(father), 1087(mother) & 1088(minor)/14 & RBCZ/9001508-9001510/16 (formerly RBCZ 248(Father), 249 (Mother) & 2991 (Minor)/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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