HCAL108/2018
[2019] HKCFI 107
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 108 of 2018
BETWEEN
| Gurvinder Singh | Applicant |
| and | |
| The Director of Immigration | 1st Putative Respondent |
| The Adjudicator of the 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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. The applicant applies for leave for judicial review of:
a. The Director of Immigration (“the Director”); and
b. The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).
The applicant
2. The applicant is an Indian male, who entered Hong Kong on 22 February 2014 lawfully as a visitor and he was permitted to stay by the Director until 8 March 2014. He overstayed without permission from the Director. He was arrested by police and handed over to the Immigration Department for investigation. On 20 March 2014, he made a non-refoulement claim.[1]
The grounds of non-refoulement protection
3. The applicant claimed that if he were refouled to India, he would either be harmed or killed by his uncle because of a land dispute. His father and his uncle are joint owners of a piece of landed property inherited from their grandfather. His uncle wanted to have the whole piece of the land and he asked the applicant’s father to transfer his share to him. The applicant’s father intended to transfer his share of the landed property to the applicant. The uncle threatened that he would kill the applicant if his father did not comply with his request. His uncle was a soldier having connection with people of influence. The applicant was taken to police station where he was detained because his uncle had filed a complaint against him. He was also warned by a senior police officer that if his father did not comply with his uncle’s request, he might be framed up by police. He was informed by his father that this uncle might harm him. Therefore, he fled India and came to Hong Kong.
4. The Director considered his application under the following grounds:
a. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”);
b. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); and
c. 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”).
The Director’s Decision and Further Decision (“the Director’s Decisions”)
5. By Notice of Decision dated 29 December 2015, the applicant was notified of the Director’s Decision (“the Director’s Decision”), which rejected his application. The Director had set out the reasons in the Decision.
6. By another letter dated 3 October 2016, the Director invited the applicant to submit additional facts relevant to his application in relation to 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”). The applicant did not respond to this letter.
7. The Director proceeded to consider his application in relation to BOR 2 risk and having considered the facts, by Notice of Further Decision dated 27 October 2016 (“the Director’s Further Decision”), he refused the applicant’s application on this additional ground.
Appeal to the Board
8. The applicant appealed to the Board.
9. The Director’s Further Decision was also sent to the Board for consideration together with the Director’s Decision. A hearing was conducted by the Adjudicator on 22 December 2016. The Board had, therefore, considered the applicant’s appeal on the Director’s Decisions. By a Decision dated 2 January 2018, the Board refused his appeal and confirmed the Director’s Decisions.
Application for leave for judicial review
10. By Form No. 86 pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decision. He filed his affirmation and relied upon the grounds below:
a. he believed that the Director and the Adjudicator had come to their wrong decisions because their decisions are not reasonable; and
b. since his life was threatened back in India, he had no option but to escape from India to Hong Kong.
DISCUSSION
The Director’s Decisions
11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration[2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power to make investigations in the matter. See section 18 of Schedule 1A of the Ordinance. The Board had heard the applicant’s appeal and made its Decision.
12. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
13. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.
The Board’s Decision
14. The grounds under paragraph 10 are only his opinion, which does not constitute substantive ground in support of his application.
CONCLUSION
15. Having considered the applicant’s grounds for his application, I find that he has failed to show that his application for judicial review has any prospect of success. As such, I refuse to grant leave for his proposed judicial review. Accordingly, I dismiss his application.
Dated 15th day of January 2019
| (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 15/1/2019
Gurvinder 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 15/1/2019 The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1993/15 (formerly RBCZ 1801/14) The Adjudicator of the Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 2919/16/1/42/IN661 Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] §1 of the Board’s Decision dated 2 January 2018