Gharu Manpreet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 627/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant entered Hong Kong on 10 March 2014 on an Indian passport. He was refused entry and therefore submitted a non-refoulement (“NRF”) claim by way of written representation on the same day. His NRF claim form was submitted on 30 April 2014.
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HCAL627/2017 [2018] HKCFI 460 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 627 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by The Honourable Mrs Justice Campbell‑Moffat:
Observations for the Applicant: Procedural history 1.The Applicant entered Hong Kong on 10 March 2014 on an Indian passport. He was refused entry and therefore submitted a non-refoulement (“NRF”) claim by way of written representation on the same day. His NRF claim form was submitted on 30 April 2014. 2.The Applicant attended a screening interview on 16 May 2014. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR2) by Notice of Decision (“the Decision”) on 9 June 2014 and by Notice of Further Decision (re BOR 2) on 24 January 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Mr Wesley Wong SC, heard him on 25 January 2015 (on all matters except BOR2) and 8 September 2017 (in respect of BOR2). 3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017 and did not request an oral hearing. The matter was dealt with on the papers. The Applicant provided no affidavit in support and no Grounds of Review. Background 4.The Applicant was born in Langeana Nawan, Moga, Punjab, India on 1 December 1987. He is a Sikh of the Mujbi Sikh caste and a labourer. He maintains that he was a member of the Indian National Congress (“INC”) party for whom he became a volunteer in 2011. In September 2011, he was approached by members of the Shirmani Akali Dal (“SAD”) party, three of whom he knew as being members of his own village. They asked him to join SAD, which he refused. He was not assaulted at that time but later he was once again stopped and approached to join SAD by the same group and when he refused, he says, he was beaten with sticks which resulted in a dislocated elbow and bruises for which he went to a private physician. The Applicant reported the assault to the police but did not follow it up. The Applicant nevertheless continued to work for the INC and later in 2011, he was once again assaulted by the same group but did not sustain any serious injury and did not seek medical attention or report the matter to the police. Because of his caste and because of his membership of the INC the Applicant says he was the subject of constant verbal abuse, harassment and threats. The Applicant said that because of this he moved away from his home area. Whenever he returned, he would be the object of verbal abuse and minor physical attacks which did not require treatment. 5.In June 2013, the Applicant obtained a Hong Kong visa on false premises and was refused entry on 16 July 2013 and so he was returned to India. Thereafter, there was further harassment and assaults by the SAD group and in early 2014, the Applicant maintains he was the deliberate victim of a traffic accident in which he was attacked, requiring medical treatment including stitches to his cheek. Although he reported this attack, it was not taken any further but the Applicant cannot now say why that is. It appears that he did not follow this complaint up either. At all material times the Applicant’s own party, INC, was in power. On 10 March 2014, the Applicant came to Hong Kong on a visitor’s visa. The non-refoulement claim 6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:
Decision and further decision of the Director 7.The Director analysed the Applicant’s claim on all applicable grounds under his Decision and Further Decision. He considered a wide range of documentary evidence and he interviewed the Applicant. It is clear that the Applicant’s story was not believed. He had little or no knowledge of the political situation in India at the time he was purportedly a member of INC nor of the local membership with whom he should have been acquainted. The Director also had available to him two previous applications for entry into Hong Kong by the Applicant, in which he variously described himself as a farmer and an electrical engineer. In the last visa application, he described himself as a student. In support of his Decision and Further Decision, the Director correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to answer questions. He would not accept that during the material period, it was his own political party in power. In coming to his decision to reject his claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner. Decision of the Adjudicator 8.The Adjudicator also analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles. As with the Director, the Adjudicator did not believe the evidence of the Applicant and he gave detailed reasons and examples for why that was the case. Nevertheless, the Adjudicator gave the benefit of the doubt to the Applicant and considered the application objectively applying the correct legal principles to his decision making. He also took into consideration the relevant COI materials, which were extensive, and applied them to the facts as he found them to be. Leave to apply for judicial review 9.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them. Grounds of review 10.There were no grounds of review. As a result I took into consideration the Decisions of the Director and Adjudicator and considered whether there was any evidence of unlawfulness, unreasonableness or unfairness. Conclusion 11.I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, both the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable. 12.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review. Dated 16th day of March 2018.
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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