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

HCAL1601/2018

[2019] HKCFI 1795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1601 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 4 August 2014. He was unable to fulfil the immigration requirements and was therefore refused permission to land. He lodged a non-refoulement claim on the same day.

3.He claimed that he would be killed by Bobby Singh, a moneylender affiliated with the Akali Dal Party (“ADP”) because of a property dispute if he was to be returned to India.

4.In his statements given to the Director and the Board, he said that his father had borrowed money from a moneylender. He had used his house as surety for the repayment of the loan. He was unable to repay and the moneylender came with some police officers to enforce the surety. His father sold a piece of land for payment of the interest. But the moneylender insisted upon the house. He had kidnapped the applicant in a car demanding him to persuade his father to pass the property to him. Inside the car, the applicant was beaten up and those people had used a gun to point at his head. He was thrown out of the car and became unconscious. He was admitted to hospital. But he did not suffer any injuries. Eventaully, he came to Hong Kong.

The Director’s Decisions

5.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”).

6.By Notice of Decision dated 26 September 2014 (“the Director’s Decision”) and Notice of Further Decision dated 26 April 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board and he attended the hearing before the Adjudicator on 25 June 2018.

8.By Decision dated 27 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Adjudicator stated in the Board’s Decision that he had great reservation as to the credibility of his evidence [38]; that even if he accepted the applicant’s evidence, his treatment did not fall within the meaning of “torture” under section 37U(1) of the Immigration Ordinance [44]; that the applicant had failed to establish that he would be liable to be subjected to torture if he be sent back to India [46]; that the incidents were between his father and the moneylender and it had nothing to do with his race, religion, nationality, membership of a particular social or political opinion at all within the context of persecution risk [51].

Application for leave to apply for judicial review

10.By Form 86 dated 10 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 Decisions and the Board’s Decision.

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

(1)   he did not understand that he could give further facts for BOR 2 risk and he did not receive the Director’s Further Decision, which is an unfair procedure;

(2)   the Director’s Decisions and the Board’s Decision are wrong as they are unfair;

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

(4)   the hearing bundle was given to him shortly before the appeal hearing without translation and

(5)   the Director cherry picked the Country of Origin Information to rebut his claim.

DISCUSSION

The Director’s Decisions

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 investigation in the matter. The Board had considered his appeal and made its Decision.

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

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

The Board’s Decision

16.The applicant appeared before me. He confirmed that he considered that he had had a fair screening before the Immigration officer and a fair hearing before the Adjudicator.

17.The Board had great reservation on the applicant’s credibility and the Adjudicator had given his reasons raising doubts on his evidence [38]. The factual basis in support of the applicant’s claim is therefore weak. The Board had also found that the applicant’s case simply did not fall within the context of the risks above [44 & 46]; the disputes only related to land and it had nothing to do with his race, religion, nationality, membership of a particular social or political opinion at all [51]; and that internal relocation was a viable option [58].

18.Ground (1) fails because the applicant had appeared before the Board and he could give further facts to the Adjudicator.

19.Grounds (2) and (5) are the applicant’s opinions without any evidence to support them. They fail.

20.Ground (3) does not stand because 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. He has no ground of complaint.

21.Ground (4) is a non-point as he said in court that he had no difficulty with the Adjudicator and he thought he had a fair hearing himself. He did not have further evidence to submit at the hearing.

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

CONCLUSION

23.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 18^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