Case Document

100%Judiciary

HCAL 2439/2018

[2020] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2439 of 2018

BETWEEN

	Manpreet Singh	1^st Applicant
	Mandeep Kaur	2^nd Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicants in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants are husband and wife. This is their application for leave to apply for judicial review of the Decision dated 25 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.Leave was granted to the applicants to amend Form 86 by deleting the Director of Immigration (the “Director”) from being a respondent and by deleting the Board as interested party.

The applicants

3.The applicants are Indian nationals. The husband came to Hong Kong on 4 December 2014 as a visitor and was permitted to stay as such until 8 December 2014. He overstayed and surrendered himself to the Immigration Department. He lodged his non‑refoulement claim on 21 June 2016. The wife came to Hong Kong on 18 February 2016 as a visitor and was permitted to stay as such until 3 March 2016. She overstayed and surrender herself to the Immigration Department on 8 March 2016. She lodged her non-refoulement claim by way of written representations respectively dated 26 May and 30 May 2016. They jointly made an application to the Director for their applications to be jointly considered. The Director acceded to their requests.

4.They claimed that if refouled, they would be killed by the wife’s father and his people as her family opposed to their marriage. She also claimed that she would be forced to marry to another man.

5.They started their relationship in 2008. The wife’s family was against it. The wife’s father was very angry and tried to persuade her to marry another man. She refused. They eloped to live in Chandigarh, around two and a half hours’ drive from their city. In 2011 they got married and lived in Yamuna Nagar. The wife’s father sent four people with masks to attack him two times. They approached him with daggers. On the first occasion, he was able to escape. On the second occasion, he was hurt when he tried to grab the dagger. The third occasion was when they were walking on the street, those people approached them with daggers. They managed to escape. They decided to leave India for Hong Kong.

6.The husband left India on 3 December 2014, the wife left on 17 February 2016. They made their non-refoulement claims respectively as described above.

The Director’s Decision

7.The Director considered their application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

8.By Notice of Decision dated 15 December 2017, the Director refused their claim for the reason that their claim was not substantiated. The Director considered the evidence and found that the level of risk of harm from the wife’s father and his people upon their return to India was low [14]; that state protection was available to them [17] and internal relocation was an option open to them [23].

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decision and they attended a hearing before the Adjudicator on 14 September 2018.

10.By its Decision, the Board rejected their appeal and confirmed the Director’s Decision.

11.The Board considered that the immigration officer’s interview with them was not satisfactory as they were both present before him and were able to hear the evidence of each other. The Board therefore considered necessary to conduct a hearing with each of them appearing before the Adjudicator at a time so that their evidence might be tested and compared. See paragraphs 25-27 of the Board’s Decision. Having considered their evidence, the Board came to a conclusion that they had presented an account to which no credence could be given, their relationship was a fiction and their evidence was not the truth or even reasonably likely to be the truth. See paragraphs 25-49. The Board also found that state protection by way of protection houses for this kind of marriages was available in India. See paragraph 50.

Application for leave to apply for judicial review

12.They filed Form 86 dated 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In their joint affirmation in support of their application, they relied upon the grounds below.

1.There was no legal representation for their appeal to the Board or for this application.

2.There was no language assistance for them for the appeal or for this application.

3.The Board had not dealt with the Director’s error properly.

4.The hearing bundle was not translated into their language.

5.The country of origin information was selected without giving reason for such exercise.

6.The Board refused to accept their relationship without any evidence.

DISCUSSION

14.The applicants appeared before me and confirmed that they were at liberty to make their submissions to the immigration officer and Adjudicator of the Board.

15.I put the Board’s findings to them. They refused to accept the Board’s findings, making the same comments on the Board’s refusal to accept their relationship as above.

16.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

18.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

19.The Board had set out the reasons in its Decision why it found their evidence not credible. It was entitled to form its own views after assessment of the evidence before it. When it said that there were numerous inconsistencies that the applicants were unable to give satisfactory explanation, it would not be unreasonable for the Board to have come to such conclusions.

20.Grounds (1), (2) and (4) fail in view of the authorities above. Grounds (3) and (5) are their opinions without any evidence or particulars in support of them. Ground (6) fails too as the Board had given its reasons in its Decision why their relationship was not accepted despite documentary evidence. It found that documentary evidence was not reliable as they could be obtained by other means. The direct evidence from their oral evidence was more reliable. Such evidence did not support their relationship. This is the main reason why the Board rejected their relationship.

21.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

22.Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their application.

Dated the 28^th day of July 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 28/7/2020 Manpreet Singh (1^st Applicant) Mandeep Kaur (2^nd Applicant) Applicants’ ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9705/17/12/372/IN1824; USM 9706/17/12/373/IN1825 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2639/17 (formerly RBCZ/12334/16); QA T/C 2484/17 (formerly RBCZ/12086/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)