HCAL736/2017
[2018] HKCFI 1411
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 736 of 2017
BETWEEN
| Gursewak Singh | Applicant |
| and | |
| Director of Immigration | 1st Putative Respondent |
| 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 byDeputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is an India national. He is now aged 24 (DOB: 15 February 1994).
2. The Applicant claimed he would be killed by his uncle Mahinder Singh (“Mahinder”) because they had a land dispute.
3. The Applicant said his grandfather left some land to his four sons. The Applicant’s father got his share and gave the land to the Applicant and the Applicant’s elder brother. The Applicant's uncle Mahinder wanted to exchange his land with that of the Applicant and his brother. The Applicant’s father refused Mahinder’s request.
4. Mahinder was a member of the Shiromani Akali Dai Party (“SAD”). He was closely related to a SAD leader cum Member of the Legislative Assembly. That person was called Veer.
5. In 2008, Mahinder usurped some land belonging to the Applicant’s family. The Applicant’s father fought with Mahinder and got hurt. Mahinder boasted he was connected to the police so the police would not help the Applicant’s family.
6. The Applicant’s father did not report the matter to the police. He and Mahinder went to the village council for assistance. However, the council told them to resolve the matter elsewhere.
7. In 2008, the land dispute was taken to the District Court. The proceeding dragged on. Nobody listened to the Applicant’s side because Mahinder had connection with the court. Nevertheless, the Applicant’s father won the case in 2011.
8. In 2012, Mahinder and his son wounded the Applicant seriously. The police were called. However, they took no action against Mahinder and his son.
9. The land dispute was taken further to the High Court in 2012. The court ordered both sides could not use the front portion of the land in dispute.
10. In 2013, Mahinder went to the Applicant’s land again. He threatened to hurt the Applicant if he could not get the land. Mahinder again said the police would not help the Applicant.
11. The matter was later reported to the police but no action was taken by them.
12. In 2014, Mahinder again threatened the Applicant. He said he would get the land with his power and influence of SAD.
13. The Applicant was advised by his family members to stay at home. Later he went to live in another city.
14. Mahinder called the Applicant in December 2014. He said he knew where the Applicant was. He threatened to kill the Applicant. The Applicant was scared. At that time, the Applicant’s brother was in Malaysia. He had also received threats from Mahinder and dared not return to India. The Applicant’s parents suggested the Applicant should leave India.
15. The Applicant arrived in Hong Kong on 8 December 2014 as a visitor. He overstayed from 23 December 2014. Two odd months later, he was arrested by the police. He then raised a non-refoulement claim.
16. The Applicant said his father died in mid-2017. He did not know the circumstances of his death.
17. The Applicant did not think the India authorities could protect him. He also did not think internal relocation was viable because Mahinder had connection with the police and SAD. Mahinder could find him easily in India.
18. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), 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].
19. On 6 October 2017, the Applicant applied for leave for judicial review.
Chronology of events
20. Things happened in this order: –
| 2014-12-8 | The Applicant left India and arrived in Hong Kong as a visitor. He was allowed to stay until 22 December 2014. |
| 2014-12-23 | The Applicant began to overstay in Hong Kong. |
| 2015-2-11 | The Applicant was arrested by the police. |
| 2015-2-13 | The Applicant lodged a non-refoulement claim. |
| 2017-6-9 | The Director held a screening interview with the Applicant. |
| 2017-6-15 | 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 (BOR2 risk). [“the Director's decision”] |
| 2017-9-5 | The Applicant appeared before the Board for appeal. |
| 2017-9-8 | The Adjudicator refused the Applicant’s claim with respect to all of the four applicable grounds. |
| 2017-10-6 | The Applicant applied for leave for judicial review. |
Respondents
21. 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.
22. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.
23. 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.
24. 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]
25. In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 6 October 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 8 September 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 6 October 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
26. In the Director’s decision dated 15 June 2017, the immigration officer did not make specific finding on the Applicant's credibility. However, even on the strength of the Applicant's allegations, the officer considered the risk which the Applicant feared was low. He was not satisfied the alleged enemies had real intention to harm or kill the Applicant.
27. The officer was aware there were reports of police shortcomings in India including corruption. However, there was also objective country-of-origin information (“COI”) to show the India government had taken practical steps to monitor the police and to improve their effectiveness in protecting citizens’ rights. The officer found that the situation feared by the Applicant was not instigated by the state or SAD. He considered reasonable state protection was available to the Applicant. Reasonable internal relocation was also viable.
28. The officer did not accept the Applicant had any real risk that warranted non-refoulement protection. He 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).
TCAB/NCPO (the Board)
29. The Adjudicator found there were discrepancy and exaggeration in the Applicant's allegations. He was not satisfied the alleged enemies had a real intention to harm the Applicant. He considered the Applicant failed to establish he was in need of non-refoulement protection.
30. On the other hand, having considered relevant COI the Adjudicator was satisfied that state protection and internal relocation were available to the Applicant.
31. The Adjudicator found the Applicant did not face any real risk that warranted non-refoulement protection. He 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
32. In Form 86, the Applicant complained the Director failed to properly consider the issues of state acquiescence (including its extended concept) and state protection; failed to appreciate the misconduct/corruption/incompetence of the India police and authorities; failed to properly consider relevant COI; cherry-picked facts/information; failed to attain high standards of fairness.
33. The Applicant accused the Adjudicator failed to make sufficient enquiry; rendered unreasonable decisions; failed to advise him to obtain evidence (including medical reports) from India.
Court hearing
34. The Applicant requested a hearing. The hearing took place on 30 May 2018. A Punjabi interpreter provided assistance in court.
35. The Applicant confirmed that all the grounds of judicial review were stated in the documents. He was invited to elaborate any of those grounds. He said he had nothing to add.
36. The Applicant also confirmed he had submitted all information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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]
39. The Applicant complained the Adjudicator failed to advise him to obtain evidence (including medical reports) from India in relation to the seriousness of his claimed threats and ill-treatment.
40. The Adjudicator or the Director had to engage in joint endeavour with the Applicant in the screening process. However, they were not the Applicant's counsel. The Applicant knew his case best. He certainly knew he had to prove his alleged harm or ill-treatment. The Applicant had been in Hong Kong since December 2014. If he wanted to adduce relevant proof, he had all the time and opportunities to get the proof for submission to the Director and the Adjudicator. He needed no advice in this regard. There is no substance in such complaint.
41. There are other complaints raised by the Applicant against the Adjudicator and the Director. I have reviewed the Adjudicator’s decision and the Director'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 any of the Applicant’s complaints. The Director and the Adjudicator 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 Director's report and the Adjudicator’s report 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
42. The Applicant's complaints are not reasonably arguable against either 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 28th day of June 2018
| (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: | | | | |
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)). | | Sent to the Applicant on 28/6/2018 Gursewak Singh Applicant’s ref. no:
Nil. | | 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 28/6/2018 Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 931/17 (formerly RBCZ/10646/15)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 7593/17/6/289/IN1438
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.