Gurjant Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 1161/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of India. He is now aged 25 (DOB: 1 May 1993).
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HCAL1161/2017 [2018] HKCFI 1676 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1161 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of India. He is now aged 25 (DOB: 1 May 1993). 2.The Applicant claimed he would be killed by Jatinder Singh (“Jatinder”) and Nishan Singh (“Nishan”) in India. 3.In 2012, the Applicant studied in a postsecondary college. He was popular among his peers. He was elected vice president of one of the student unions in the college. The Applicant supported the Shiromani Akali Dal Party (“SAD”). 4.Jatinder was the president of another student union. He supported the Indian National Congress (“INC”). He and his associates often caused troubles to other students. The Applicant had intervened. Jatinder was jealous of the Applicant’s popularity. He and his followers often harassed the Applicant. 5.In July 2013, an election took place in the Applicant’s village. The Applicant's cousin Ranjodh Singh was one of the candidates. Nishan was another candidate, who had the backing of INC and the Communist Party of India (“CPI”). 6.During the election, the Applicant witnessed cheating by some of Nishan’s supporters. An altercation arose. The Applicant was injured. The police were alerted. They took a statement from the Applicant. However, they later accused the Applicant of making false accusation against Nishan’s side. The police ignored the Applicant’s complaint. The Applicant believed Nishan had bribed the police. He thought the police were also under pressure from INC and CPI because the leaders of those two parties were backing Nishan and Jatinder. 7.A few months later, Jatinder and his friends assaulted the Applicant. They later made death threats to the Applicant on the phone. 8.In November 2013, the Applicant was again assaulted by Jatinder and some masked men. He was injured severely. The police were alerted later but they did not take any action. 9.The Applicant continued to receive death threats from Jatinder’s side. He left his village to live in his cousins’ place for 2-3 months before leaving India. 10.The Applicant left India on 8 February 2014. He arrived in Hong Kong on the next day. He did not seek non-refoulement protection immediately. Instead, he claimed to be a visitor. He was allowed to stay until 23 February 2014. The Applicant overstayed and was arrested by the police severral months later on 8 August 2014. Then he sought non-refoulement protection. 11.The Applicant claimed his enemies had been looking for him. They knew he was now in Hong Kong. He did not believe the India authorities could protect him because of corruption and political interference. The Applicant also said internal relocation was not viable since his enemies had strong connections and vast networks to locate him in India. 12.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]. 13.On 29 December 2017, the Applicant applied for leave for judicial review. Chronology of events 14.Things happened in this order: –
Respondents 15.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. 16.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. Thus, the Board is the first putative respondent; the Director is the second putative respondent. 17.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] 18.In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 29 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 30 November 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 and further decision albeit late on 29 December 2017; the application against the Board's decision was made in time. Director of Immigration (the Director) 19.In the Director’s decision dated 29 August 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer did not accept the Applicant had been inflicted with any harm that had reached the minimum level of severity. He did not accept the alleged enemies had real intention to kill the Applicant. The Applicant’s feared risk was not likely to materialise. 20.The officer was aware there were reports of corruption in India. However, there was also objective country-of-origin information (“COI”) showing reforms in the country. The officer was not satisfied that reasonable state protection was not available to the Applicant in India. He found internal relocation was also viable. 21.The officer did not accept the Applicant would face any torture risk, persecution risk and CIDTP risk (BOR3 risk) if he was refouled to India. He refused the Applicant’s claim with respect to those three applicable grounds. 22.Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter. 23.In the Director’s further decision dated 16 June 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 24.The Adjudicator found the Applicant was evasive and confused in his answers. What the Applicant said was vague and limited in terms of content. There were inconsistent and incoherent features in his allegations. The Adjudicator did not accept the Applicant was a truthful witness. He did not believe the Applicant's claim. 25.The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk. Grounds for judicial review 26.In his affirmation, the Applicant had these complaints: –
Court hearing 27.In Form 86, the Applicant requested a hearing. The hearing was scheduled for 8 June 2018. The Applicant was absent. The court has not heard anything from the Applicant. Discussion 28.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 29.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] Lack of legal representation 30.The Applicant complained that he had not been provided with sufficient legal assistance after the Director's decision coming out on 29 August 2016. He had been assisted by the Duty Lawyer Service till then. 31.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. Lack of language assistance 32.The Applicant complained he had not been given sufficient interpretation/translation assistance. 33.The Applicant had Form 86 and the affirmation for judicial review prepared in English. Apparently, he could find someone to assist him with interpretation/ translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. His suspicion that the interpreter might not have properly translated the basis of his claim in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint. No reasons given by the Director in his further decision dated 16 June 2017 34.The Applicant complained the Director did not give reasons for his decision on BOR2 risk. 35.The Director’s further decision dated 16 June 2017 relating to BOR2 risk was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 29 August 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It was sufficient for the Director to express as he did in his further decision dated 16 June 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR being violated (including the right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 29 August 2016. Lack of fair hearing 36.The Applicant again complained about insufficient legal assistance and language assistance. These two issues have just been dealt with. 37.The Applicant also complained the Director had not held an interview for the BOR2 issue. 38.The Director had sent a letter to the Applicant on 29 May 2017 to ask the Applicant to submit additional facts relevant to his claim on all applicable grounds including BOR2 risk. The Applicant did not respond. In such circumstance, the Director was entitled to continue to assess the Applicant's claim without holding further interview. The Applicant failed to show the court he really had more to contribute to his claim by way of evidence or submission if the Director specifically held an interview on the BOR2 issue. There is no evidence to show the Applicant had been deprived of any opportunity to prove his claim as fully as he could. 39.The Applicant further complained the Director was absent from the appeal hearing on 3 October 2017. I cannot see how the Director's absence would prejudice the Applicant's appeal. 40.I have reviewed the Director's decision and Adjudicator’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 the Applicant’s complaints against the Director or the Adjudicator, who 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 reports of the Director and the Adjudicator respectively 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 41.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 30th day of July 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] CACV 284/2017 Re: Paswan Shibu Lal, para 21. |
Cases cited in this judgment