Sidhu Harpreet Singh v. The Adjudicator of the Non-refoulement Claims Petition Office and Another

HCAL1428/2018

[2019] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1428 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 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 28 March 2013 as a visitor and was allowed to stayed until 11 April 2013. He overstayed without the Director’s permission. He was arrested by police on 13 August 2013. On 15 August 2013, he was referred to the Immigration Department for further investigation. On 17 April 2014, he lodged his non-refoulement claim.

3.In his statements given to the Director and the Board, he said that if he was refouled, he would be harmed or killed by his granduncles because of a land dispute. He further said that on one occasion, the granduncles brought 15-20 people to the farmland where the applicant and his father and other relatives were working. They took weapons such as knives and axes with them and they attacked the applicant and his father. Both of them suffered injuries and were admitted to hospital for 12 to 15 days. He had to move to Hong Kong for protection.

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 18 October 2016 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

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

7.By Decision dated 6 July 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

8.The Adjudicator stated in the Board’s Decision that whilst the applicant’s evidence at the hearing was broadly consistent with his previous claims, but differed in that he said that he was not injured in the fight with his father’s cousins at the family’s land before he left India, which was quite a significant inconsistency [36]. He also found other doubtful situations which the applicant was unable to give explanation, as a result of which, he found that the local authorities would be able to provide him with protection [41]; that he disbelieved that the applicant came to Hong Kong to seek protection [42]; that he also disbelieved that the applicant had a genuine fear of serious harm should he return to India [44].

Application for leave to apply for judicial review

9.By Form 86 dated 19 July 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.

10.In his submissions attached to Form 86 in support of his application, the applicant relied upon the grounds below:

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

(2)   The Adjudicator failed to give him sufficient time to arrange relevant evidence to his claim; and

(3)   The Immigration officer was not willing to listen to him.

DISCUSSION

The Direction’s Decision

11.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.

12.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.”

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

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

The Board’s Decision

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

16.When I put the comments of the Adjudicator to him for comments, he refused to answer my questions. I warned him that if he did so, then it would be up to me to consider that he had no explanation to those comments and that I might consider that he was uncooperative with me. He said that it would be up to me to decide. In the circumstances, I refrain from asking him further question and I accept the Board’s Decision.

17.It is obvious that the Board rejected his claim because his evidence was incredible. The applicant therefore had no factual basis in support of his claim.

18.All the above grounds are the applicant’s opinions without any evidence to support them and they are irrelevant to the reasons of the Board’s Decision. They are rejected.

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

CONCLUSION

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

Dated the 17^th day of July 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