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

HCAL 2933/2018

[2019] HKCFI 2812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2933 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision 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 14 May 2015 illegally through China. He surrendered himself to the Immigration Department on 20 May 2015. On the same day, he submitted his non-refoulement claim.

3.His reason for his application is that if he was refouled to India, he would be seriously harmed or killed by his paternal uncle Balvinder Singh because of his political and land disputes.

4.In his statements given to the Director and the Board, he claimed that he and his family were supporters of the Congress Party whilst his uncle supported the Akali Dal Party (“ADP”). His uncle tried hard to persuade him and his family to convert to ADP. They refused. In 2012 election the ADP won the election. His uncle pressed them to convert but they still refused. Also, his father and his uncle had inherited land from their deceased father. His father’s piece of land was near the main road and there was more valuable whilst his uncle’s piece of land was farther away and less valuable. His uncle attempted to take over his father’s piece of land by using fake certificate and asking people to go into the lot and tried to expel them from cultivating the land. Those people assaulted him and his father. He ran away. He had attempted to report the matter to police, who refused to register the case. He moved to other places. His friends advised him to leave India for Hong Kong. He took their advice.

The Director’s Decision

5.The Director considered his application only 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 under RC”).

6.By Notice of Decision dated 18 August 2017 (“the Director’s Decision”), 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 18 May 2018.

8.By Decision dated 14 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case. The Adjudicator seemed to accept the facts as alleged by the applicant. Her refusal of the applicant’s claims was based upon the application of the relevant statutory provisions and the Convention to the facts of the case. First of all, the Board found that internal relocation was a viable option to the applicant [27].

10.As to Torture risk, the Board found that the evidence did not support that the applicant has suffered severe pain or suffering, whether physical or mental for the purpose of subsection (a) of section 37U of the Ordinance [36] and also no public official or other person acting in an official capacity was involved [35].

11.As to BOR 2 risk, the Board found that there was no evidence which showed that he would be arbitrarily deprived of his life. [43]

12.As to BOR 3 risk, the Board found that the applicant had not established that he would face a genuine and substantial risk of being subjected to such mistreatment as defined by BOR 3 upon his return to India [47].

13.As to Persecution risk under RC, the Board found that the applicant failed to have evidence to show that he would be subjected to such risk upon his return to India [51].

14.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

15.In his affirmation in support of his application dated 20 December 2018, the applicant relied upon the following grounds:

1. the Director’s Decision and the Board’s Decision were unfair;

2. he was not provided with language assistance;

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

4. the Adjudicator did not look at the case afresh as she found that the Congress had won the election and his uncle’s political influence would not be in force and he had an advantage, being a supporter of the Congress Party;

5. the Immigration Department just adopted a uniformed approach to reject all non‑refoulement claims;

6. the Adjudicator did not address his complaints against the Immigration officer; she was just made the assessment on a template [templet] basis;

7. he was not provided with the service of translation whilst other claimants were so provided; and

8. the Board did not give any proper explanation about their conclusion that internal relocation was available to him, without taking into consideration that there were gangs and other political parties in other cities and his uncle could easily find him.

DISCUSSION

The Director’s Decision

16.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.”

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

The Board’s Decision

18.The applicant appeared before me. He confirmed that he was able to give evidence freely and fully before the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained to him the Hearing Bundle and the Board’s Decision.

19.I have put the Board’s findings and comments to the applicant and asked for his comments. He said that he had no comments.

20.He does not have the absolute right of 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.

21.Grounds (1), (4), (5) and (6) are his opinions without any evidence in support of them.

22.Ground (2) is inconsistent with what he said before the Court.

23.Ground (3) fails in view of the Court of Appeal’s decision.

24.Ground (7) is irrelevant as there is no evidence of other claimants’ cases.

25.Ground (8) has no substance because the Adjudicator is entitled to rely upon the Country of Origin Information and make her decision accordingly. The applicant has not complained that he had submitted those factors to her in the hearing and she had not taken them into account. The burden is on the applicant to bring those factors to the Adjudicator’s attention. High standard of fairness does not allow the applicant to sit back and require the Adjudicator to do the investigation in vacuum.

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

CONCLUSION

27.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 18^th day of November 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