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

HCAL 2605/2018

[2020] HKCFI 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2605 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 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”).

2.The applicant requested a hearing, which was fixed at 10:00 am on 8 May 2019.  However, he was absent on that day.

3.By an Order dated the same day, I dismissed his application for want of prosecution.

4.By summons dated 22 May 2019, he applied for leave to appeal. His application will be treated as an application to set aside the ex parte order under O.32, r. 6 of the Rules of the High Court (“RHC”).

5.The applicant appeared before me on 5 July 2019. He explained that he did not receive the notice to attend court. He was unable to give an explanation except that there were many letter boxes outside his premises. The notice might have been taken by others by mistake.

6.I accept his explanation as there appears no reasons for him not to pursue his application.

7.I now set aside the said ex parte order dismissing his application and proceed to hear his application.

The applicant

8.The applicant is an Indian national. He arrived in Hong Kong on 20 November 2015 as a visitor and was permitted to stay until 4 December 2015. He overstayed and surrendered himself to the Immigration Department on 7 December 2015. He lodged a non-refoulement claim by written submissions dated 31 May 2016 and 1 June 2016 respectively.

9.His reason for his application is that if he was refouled to India, he would be harmed or killed by his enemies who belonged to Shiromani Akali Dal (“SAD”), particularly Harpreet Singh (“Harpreet”) and Nirmal Singh (“Nirmal”) as they wanted him to join SAD and they wanted to occupy his farmland forcefully.

10.He claimed that he was a member of the Indian National Congress (“INC”). He was a polling agent during elections between 2009 and 2015. During the elections, he was, for many occasions, arrested by police and was detained and tortured by the police. It was only after his family, who paid bribes to the police officers, he was released.

11.He owed a farmland adjacent to a piece of government land, which Harpreet and Nirmal occupied unlawfully. They did not allow him to go over the government land. He sued them in court. The court order Harpreet and Nirmal to vacate the government land. They refused to leave. In July 2012, when he and his paternal uncle were going past the government land, they were attacked by Harpreet, Nirmal and their people. As a result, he and his uncle were injured. They went to the hospital and was denied admission as the hospital told them that a member of the Legislative Assembly who backed up Harpreet and Nirmal had told them not to accept them for medication. They went to a private clinic for treatment.

12.On 25 or 26 July 2012 at about 7:30 pm Nirmal, Harpreet and other people, including two policemen fired at their car, in which he, his brother and his cousin were sitting. The car smashed onto the footpath and they managed to escape. He reported to police of the incident. The police refused to register the case. Harpreet and Nirmal framed up a case against him. He surrendered himself to police and was detained and tortured by police officers, who hit his sole and hip with hard object. He was discharged through paying bribe by his family. He could not tolerate the physical and mental torture by Harpreet and Nirmal. He joined SAD in 2012.

13.However, the troubles did not cease. Here were the incidents which took place.

a.Between November 2012 and April 2013, he was assaulted by the people of Harpreet and Nirmal.

b.Those people also vandalized his shop and slapped him.

c.His father was also assaulted.

d.He was attacked at his friend’s roadside restaurant.

14.He was under immense mental stress that he had to leave India for Hong Kong.

The Director’s Decision

15.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 under RC”).

16.By Notice of Decision dated 24 March 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board

17.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 22 August 2018 and 6 September 2018 respectively.

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

19.The Board considered the applicant’s case carefully. It found that the applicant was not a reliable witness. He had failed to make prompt and full disclosure of material facts [148-150]. The Board found that his evidence was unsupported by any reliable objective evidence and it dismissed his evidence as factually accurate. It further said: “… I have serious doubts about the credibility and reliability of his account.” [191] The Board accepted that there was a land dispute between his family and Harpreet and Nirmal and there was confrontation. It concluded that he has fabricated and/exaggerated the reminder of his account in order to create a basis for his application for protection from refoulement. [192]. The Board does not consider there is a real risk of harm to the Appellant from Harpreet and Nirmal or any of their associates, if he is refouled to India. [193]

20.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.

21.The applicant relied upon the following grounds as attached to Form 86:

1.the Director’s and the Board’s decisions are wrong, unreasonable and unfair;

2.the Adjudicator failed to give him sufficient time and chance to arrange evidence to support his claim;

3.the Director failed to consider and give proper weight to his case that he was tortured;

4.the Director failed to consider his case properly and he did not give sufficient weight to his argument; and

5.the Director had adopted an unfair attitude without considering the corruption and incompetence of the administration in India and he had failed to attain high standard of fairness.

DISCUSSION

The Director’s Decision

22.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

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

24.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.”

25.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

26.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. he was legally represented at the appeal hearing as well. His lawyer had explained to him the Director’s and the Board’s Decisions. He considered that he had had a fair hearing before the Board.

27.I put the Board’s findings to him and asked for his comments. He said that he understood and that he now had the document to prove he owed the land.

28.However, this Court has no power to make investigation into the facts as held by the Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Board did not come to the above conclusion solely because he did not have the documentary evidence to prove his ownership of the land. I did not consider his documentary evidence.

29.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.

30.The above Court of Appeal case also decided that the facts are found by the Immigration officer and the Adjudicator.

31.Grounds (1), (3) to (5) are his opinions without any evidence in support of them. They are bare assertions only.

32.Ground (2) also fails because he has not even set out what evidence he wanted to arrange for the Board’s consideration.

33.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 29^th day of July 2020

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