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

HCAL2487/2018

[2019] HKCFI 1560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2487 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 31 August 2012, but he was refused to land. He was removed to Macau. On 1 September 2012, he came to Hong Kong again and applied for torture claim protection. He was released on recognizance pending his claim to be assessed. On 28 November 2012, his torture claim was rejected, but he failed to report recognizance and absconded. He was arrested by police on 21 December 2013 for possession of a false instrument and was convicted. He was sentenced to six weeks’ imprisonment. On 23 December 2015, he lodged a non-refoulement claim.

3.His reason for his application is that if he was refouled to India, he would be harmed or killed by the family of his wife Mandeep Kaur (“Kaur”) and his own family.

4.In his statements given to the Director and the Board, he claimed that he met Kaur at his shop selling mobile phones. They were of different casts themselves. However, they fell in love. Their relationship was disapproved by their respective families. They eloped to a friend’s place where they got married. Their respective families managed to locate them. They came to where he and his wife were living. They assaulted him with sticks. Kaur was taken back to her home. Later, he learned that Kaur committed suicide. Her family was angry with his family, as a result of which, his brother was shot dead by Kaur’s brother. He said that he was unable to relocate himself in India as Kaur’s family had good connection with government officials and they would be able to locate him. He went to Macau without difficulty. When he came to Hong Kong, he was refused entry.

The Director’s Decisions

5.He had made a torture claim similar to that under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) and was rejected. He did not appeal. The Director therefore considered his application only in relation to the following risks:

a.  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”);

b.  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

c.  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”).

6.By Notice of Decision dated 10 August 2016 (“the Director’s Decision”) and Notice of Further Decision dated 19 July 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 8 September 2017.

8.By Decision dated 18 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s case carefully. It found that the applicant was not a credible, truthful and reliable witness. It found that he had fabricated and exaggerated his evidence to advance a claim for non-refoulement protection [54]. It came to such conclusion after considering that his evidence was inconsistent and divergent [49]; without reasonable explanation for those differences [50]; that he was unable to provide names of people who were central to his account [51]; and that he had introduced several new significant events at the hearing [52].

10.In his Form 86 dated 6 November 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 Decisions and the Board’s Decision respectively.

11.In his affirmation in support of his application dated 6 November 2018, the applicant relied upon the following grounds:

(1)   the Director’s Decision was unfair as he failed to consider and give proper weight to state acquiescence;

(2)   he was not provided with language assistance;

(3)   he was not provided with legal assistance for this application;

(4)   he was not aware of the Director’s Further Decision;

(5)   the Director did not make a full research, but was only adopting a uniform approach, cherry picking the Country of Origin Information (“COI”) without giving reasons as to why he preferred the COI not beneficial to his case;

(6)   the Director failed to consider his case properly and he did not consider extended acquiescence issue;

(7)   the Director failed to give sufficient weight to his argument; and

(8)   the Board failed to consider that he was under big pressure and high stress that he tended to forget things and that it did not believe him.

DISCUSSION

The Director’s Decision

12.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 the 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 considered his appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

14.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.”

15.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His friend had explained to him the hearing bundle. Their respective decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

18.All those grounds are irrelevant to the Board’s findings above.

19.His case has nothing to do with the state. Grounds (1) and (6) fail.

20.Ground (2) is inconsistent with what he said before this Court.

21.He does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (3) fails.

22.Ground (4) has no relevance as he had already put his case before the Adjudicator.

23.Grounds (5) to (8) are his opinions without any evidence in support of them.

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

CONCLUSION

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

Dated the 17^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