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

HCAL1573/2018

[2019] HKCFI 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1573 of 2018

BETWEEN

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.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. He arrived in Hong Kong on 16 October 2015 as a visitor and was allowed to stay until 30 October 2015. He overstayed without the Director’s permission. He surrendered to the Immigration Department on 2 November 2015. He lodged a non-refoulement claim on 29 August 2016.

3.In his statements given to the Director and the Board, he said that he would be harmed or killed by his uncle, Sahib Singh and his people if he returned to India. He and his father belonged to Damdami Taksal, a religious social group whilst his uncle belonged to its rival, the Shiromani Akali Dal. His uncle had been harassing them to leave their social group and join his group. They refused. Because of this conflict, his uncle, together with other members, had attacked them several times causing them injuries. He had moved to other places in order to avoid his uncle. But he was located after some time. He had reported the matters to police. The police took no action. He considered that his uncle had targeted him and might harm or kill him. He therefore came to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture 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 or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by 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 ”).

5.By Notice of Decision dated 3 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 23 July 2018.

7.By Decision dated 3 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Adjudicator stated in the Board’s Decision:

“57. The Board has carefully considered the Appellant’s claims… … the Board formed the view that the Appellant is not a witness of truth and that he has either embellished or fabricated his claims in relation to fearing harm from his uncle and his uncle’s associates….

58. … …the Appellant was reluctant to answer questions and stated that he wished to rely on his written claims provided to the Department…. ….

72. In relation to his grounds for appeal the Board has considered the issues raised. … …it considers that the grounds of appeal do not apply. … …

82. In light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to India.”

Application for leave to apply for judicial review

9.By Form 86 dated 8 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In his affirmation in support of his application dated 8 August 2018, the applicant relied upon the grounds below:

(1)  The Director’s Decision and the Board’s Decision are wrong as they are unfair;

(2)  he did not have legal assistance or language assistance for his appeal;

(3)  the hearing bundle was given to him shortly before the appeal hearing without translation;

(4)  the Director cherry picked the Country of Origin Information to defeat his claim; and

(5)  the Director should accept that India is still a very corruptive country and he had no state protection.

DISCUSSION

The Direction’s Decision

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 HCAL 806/2018, 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 than this Court to make investigations in the matter. The Board had heard his 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.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

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

The Board’s Decision

15.The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator.

16.It is apparent that the applicant has failed to establish his factual basis in support of his claim. It was on this basis the Board rejected his appeal.

17.Grounds (1), (4) and (5) are his own opinions without any evidence to support them. They fail.

18.It is for the applicant to seek assistance for his language problem. He may seek assistance from the District Office, Resources Centre of the High Court, the Legal Aid Department, the Immigration Department or even the Board. He had not even tried any of these sources.

19.The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”  Ground (2) fails.

20.Ground (3) is a non-point as he said in court that he had no difficulty with the Adjudicator and he thought he had had a fair hearing himself.

21.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

22.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 13^th day of June 2019

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