Case Document

100%Judiciary

HCAL896/2018

[2019] HKCFI 109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 896 of 2018

BETWEEN

	Gurwinder Singh	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

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 the Decision of:

(a) The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”); and

(b) The Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian, who entered Hong Kong on 31 January 2015 as a visitor and was allowed to stay until 5 February 2015. He overstayed without permission of the Director. He was arrested by police on 27 March 2015 and was referred to the Immigration Department for investigation.

3.On 29 March 2015, he lodged his application to the Director for non-refoulement protection.

The grounds in support of non-refoulement protection

4.The applicant claimed that if he were refouled to India, he would be harmed or killed by Jagpreet Singh and Satnam Singh, his second cousins over a land dispute in India.

The Director’s Decision

5.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)  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”);

(c)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); and

(d)  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”).

6.By Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director notified the applicant that he rejected the applicant’s application. The Directior had set out the reasons in his decision.

Appeal to the Board

7.The applicant appealed to the Board against the Director’s decision. He attended a hearing before the Adjudicator of the Board on 30 April 2018.

8.Having considered the applicant’s evidence the Adjudicator found that the applicant’s evidence in relation to the land dispute was not reliable. See paragraph 36 of the Decision. She also found that the applicant should have state protection. See paragraph 40. Finally, she found that the state was not involved and internal relocation was available to the applicant. See paragraphs 68-70.

Application for leave for judicial review

9.By Form No. 86 under Order 53, rule 3(2) of the Rules of the High Court dated 21 May 2018, the applicant applied for leave for judicial review of the Decision of the Director and the Decision of the Adjudicator, relying upon the following grounds:

(a)  the Director was not sensitive to the issue of state acquiescence as there should be collusion between the police and the political circles;

(b)  the Director had only selected the Country of Origin Information with his pre-conceived conclusion;

(c)  the Director failed to appreciate corruption and incompetency of the administration in India;

(d)  the Director failed to attain the high standard of fairness;

(e)  the Adjudicator of the Board failed to make sufficient enquiry before her determination;

(f)  the Adjudicator should not require him to adduce evidence to prove his case because he was in custody of the Immigration Department; and

(g)  the Adjudicator failed to give sufficient chance to him to obtain the relevant evidence.

DISCUSSION

The Director’s Decision

10. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision 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 Decision and this Board has wider power to make investigations in the matter. See section 18 of Schedule 1A of the Immigration Ordinance, Cap. 115. The Board had heard the applicant’s appeal and made its Decision.

11. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

12. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

13. Grounds (a) to (e) are his opinion, unsubstantiated by any evidence.

14. As to ground (f), the Adjudicator was right to ask for proof as the applicant bears the burden of proof himself. He should have asked the Adjudicator for time to adduce the evidence.

15. The applicant was unable to say what relevant evidence he would be adducing to the Board. He had had his chance of adducing his evidence before the Director. He has the obligation to provide all relevant evidence to the Director. He also had the chance to adduce the evidence to the Board. He cannot complain that he was not given the chance to do so.

CONCLUSION

16. 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. I refuse to grant leave to the applicant for judicial review of the Board’s decision. Accordingly, I dismiss his application.

Dated 15^th 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
Gurwinder 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

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1^st Putative Respondent’s ref. no.:
USM 9036/17/11/47/IN1700

The Director of Immigration
2^nd Putative Respondent’s ref. no.:
QA T/C 2202/17 (formerly RBCZ 11095/15)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

Cites 2 cases

Cases cited in this judgment

Haider Zeeshan v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

[2018] HKCFI 2647

Court of First Instance

High Court CFI06 Mar 2019

Cited by 1 case

Other judgments that cite this case

Gurwinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

Court of Appeal07 May 2019