Deep Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 744/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is an India national. He is now aged 24 (DOB: 19 March 1994).
Cited by 2 cases · Cites 1 case
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HCAL744/2017 [2018] HKCFI 1001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 744 of 2017 BETWEEN
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:
Observations for the Applicant Background 1.The Applicant is an India national. He is now aged 24 (DOB: 19 March 1994). 2.The Applicant claimed that he would be tortured or killed by his uncle Joginder Singh in India. Joginder was the head of the village. He was also a member of Bharatiya Janata Party (“BJP”). 3.The Applicant’s grandfather had two sons: the Applicant’s father and Joginder. The grandfather left some land to his sons but no will. Joginder disputed with the Applicant’s father over the division of land. In mid-2012, Joginder asked the Applicant’s father to give up his share of the land. The Applicant’s father refused and had heated arguments with Joginder. The Applicant came to know about that. He quarrelled with Joginder. Joginder threatened to kill the Applicant. Joginder went to the Applicant’s place to cause a scene many times. 4.In early 2013, the Applicant was assaulted by some unknown persons and got injured. The assailants said the Applicant should ask Joginder why he was beaten up. They even threatened to kill the Applicant but finally left the scene. The Applicant did not report the matter to the police due to Joginder’s political influence. 5.There were further incidents in 2013-2014 in which the Applicant was attacked and injured. The assailants threatened to kill him. The Applicant understood the assailants were instructed by Joginder. Joginder himself had also made death threats to the Applicant. The assaults did not stop even though the Applicant moved to live in other places in India. 6.Finally, the Applicant decided to leave India for safety. He entered Hong Kong on 25 July 2014 as a visitor. He was allowed to stay here for 14 days until 9 August 2014. However, he overstayed and was arrested by the police on 13 August 2014. Then he lodged a non-refoulement claim. 7.In the ensuing two-tier screening process (“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]. 8.On 9 October 2017, the Applicant applied for judicial review. Chronology of events 9.Things happened in this order: –
Respondents 10.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 complaint on a rehearing basis. 11.On 9 October 2017, the Applicant filed Form 86 (the Notice of application for leave to apply for judicial review) [Folio 1]. In support of his application, he submitted a one-page affirmation also dated 9 October 2017 [Folio 2] and Exhibit “XYZ”, which consisted of the Board’s decision and a 10-page statement [Exhibit XYZ, pages 32-46]. The statement was a compilation of disjoint excerpts/statements/ information/Bill of Rights provisions. It is convenient to sum it up as the Applicant’s yearning for justice and fair assessment of his non-refoulement claim. There is no need to refer to any specific content of the statement. 12.In Form 86, the Applicant listed the Board as the sole proposed respondent. However, on page 31 of Exhibit “XYZ”, the Applicant wrote “IS ALL ABOUT LAW IN HONG KONG BUT I TREAD FORM IMMIGRATION OFFICER LIKE DISRESPECT AND DISCRIMINATION ME”. 13.Though his writing was not grammatical, the Applicant clearly said the Director had treated him unfairly in the screening process. 14.I take it that the Applicant wanted to sue the Director as well as the Board for judicial review. 15.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] 16.In the present case, the Director's decision dated 12 May 2016 was more than three months old by the time the Applicant filed his current application on 9 October 2017. However, the Applicant should not seek judicial review against any Director's decision before the Board rendered its appeal decision on 27 September 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the said Director's decision albeit late on 9 October 2017; the application against the Director's further decision dated 31 July 2017 and the Board's decision was made within time. 17.As such, there are two respondents in the current application: the Board is the first putative respondent; the Director is the second putative respondent. No request of hearing 18.Order 53, rule 3 of the Rules of the High Court provides:
19.In Form 86, the Applicant has not requested a hearing. Nor has he stated such a wish in his affirmation. There is nothing ambiguous in the application that calls for a hearing. As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only. Director of Immigration (the Director) 20.In the Director’s decision dated 12 May 2016, the immigration officer found there were no substantial grounds to believe the Applicant’s perceived risk of being harmed or killed by his enemy was real and foreseeable. The officer did not accept the Applicant had been inflicted with harm (whether physical or mental) to a minimum level of severity. The officer did not find there was state acquiescence. On the other hand, reasonable internal relocation was possible for the Applicant. 21.The officer did not find there was a real and foreseeable torture risk. She did not accept the Applicant would face a genuine and substantial BOR3 risk or any risk that could qualify as persecution risk. 22.The officer refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (or BOR3 risk). 23.Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of life risk (or BOR2 risk). However, the Applicant did not respond by the deadline of 28 June 2017 or thereafter. 24.In the Director’s further decision dated 31 July 2017, the immigration officer considered that the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). 25.The officer refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (or BOR2 risk). TCAB/NCPO (the Board) 26.In his report, the Adjudicator set out the facts and the law clearly. He was alive to the issues of the Applicant’s case. He found the Applicant’s evidence suspicious and unreliable. The Adjudicator did not believe the Applicant's story. He found that there were no real and foreseeable risk of the Applicant's being tortured; there were no genuine and substantial BOR3 risk or real BOR2 risk or any persecution risk. The Adjudicator was satisfied there was sufficient state protection in India. 27.The Adjudicator did not specifically discuss internal relocation. That would not be necessary as he did not accept the Applicant was under any risk as he claimed. 28.On 27 September 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. Grounds for judicial review 29.The Applicant has these complaints: –
Discussion 30.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 31.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] 32.The Applicant put forward a number of grounds but they lacked specifics. Ground (a): failure to consider state acquiescence 33.Both the Director and the Adjudicator had duly considered the issue of state acquiescence and found that there was no state acquiescence of any form in the Applicant’s case. Ground (b): insufficient enquiry 34.The Applicant's case was a simple one. Both the Director and the Adjudicator had made sufficient inquiry in the Applicant's claim. Ground (c): inadequate reasons given 35.The Director's decision dated 12 May 2016 and the Board's decision dated 27 September 2017 were clear enough and contained adequate reasons for the findings, conclusions and decisions therein. 36.The Director’s further decision dated 31 July 2017 was relatively brief. However, it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 12 May 2016, which contained a detailed analysis of the Applicant's case. The Applicant had not submitted additional facts for the Director's consideration of BOR2 risk, which was only a further issue to be considered by the Director on the basis of the same facts and evidence already analysed carefully in the previous decision dated 12 May 2016. It is sufficient for the Director to express as he did in his further decision dated 31 July 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 12 May 2016. Ground (d): failure to investigate into relevant COI 37.The immigration officer had referred sufficiently to relevant COI in her report dated 12 May 2016.[7] As said, she need not repeat that in her further report dated 31 July 2017. 38.The Adjudicator had also duly considered the various COI reports referred to by the immigration officer. [8] Ground (e): failed to place weight on relevant information and/or selectively placed weight on irrelevant information 39.The Applicant failed to point out what relevant information or irrelevant information he was referring to. There is no substance in this ground. Ground (f): failure to consider there was a consistent system of human rights violations in India 40.The alleged dispute between his family and Joginder was a private dispute over land. There was no element of state instigation; there was no state acquiescence of any form. Whether there was a consistent system of human rights violations in India is irrelevant to the Applicant’s case. Ground (g): failure to consider if state protection really existed in India 41.Both the Director and the Adjudicator had given due consideration to the circumstances in India and concluded that reasonable state protection was available to the Applicant. Ground (h): placing weight on irrelevant matters and inaccurate or incorrect facts 42.The Applicant failed to point out what irrelevant matters and inaccurate or incorrect facts he was referring to. This ground is vague and has no substance. Ground (i): failure to call for psychological or psychiatric reports 43.The Applicant failed to show why psychological or psychiatric reports were necessary in his case. There is no substance in this ground. Ground (j): multi allegations 44.The applicant complained that the decision-maker: applied the incorrect standard of proof; had no reasonable basis for rejecting his evidence; failed to consider extended state acquiescence; failed to consider the COI reports in assessing risks; had no proper basis to consider the issue of internal relocation; and being a different person from the interviewing officer 45.There is no evidence that the Director or the Adjudicator applied the wrong standard of proof. As said in previous paragraphs, the Director and the Adjudicator had considered relevant COI duly. The immigration officer had considered the issue of internal relocation. She concluded reasonable internal relocation alternatives were available to the Applicant. Her report shows that she had proper basis for that conclusion. On the other hand, the Adjudicator did not consider the issue of internal relocation. He need not as he found there were no risks that warranted non-refoulement protection. The immigration officer and the Adjudicator had concluded on reasonable arguments that there was no state acquiescence of any form. Lastly, the allegation that the decision-maker was a different person from the interviewing officer is simply not true. 46.None of Grounds (a)-(j) is substantiated. 47.In my judgement, both the Director and the Adjudicator had proper basis for their individual 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 the Applicant’s complaints against the Director or the Adjudicator. Each 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 reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law. They considered the Applicant's case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 48.The Applicant's complaints are not reasonably arguable either against 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 11th day of May 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
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. [7] The Director’s report dated 12 May 2016, paras 16.4-17.3. [8] The Adjudicator's report dated 27 September 2017, paras 67-68. |
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