Re Daljit Singh

CACV 294/2017

[2018] HKCA 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2017

(ON APPEAL FROM HCAL NO 428 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 15 December 2017 refusing him leave to apply for judicial review. The applicant came from India. He entered Hong Kong on 1 August 2013 with a permission to remain until 15 August 2013. He overstayed beyond that permission and was arrested by the police on 26 November 2013. He lodged his non-refoulement claim on 28 November 2013. His claim was based on his fear of harm from his four maternal uncles because of a land dispute between his maternal uncles and his mother.

2. By the Notice of Decision dated 20 April 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director assessed that, due to the low intensity and low frequency of the ill-treatments, the applicant’s fear would unlikely materialize upon return to India. It was also considered that the availability of state protection and the possibility of relocation would lower or negate the perceived risk. The decision covered the BOR 3 risk, the persecution risk and the torture risk.

3. By a Notice of Further Decision dated 1 February 2017, the Director also assessed the applicant’s claim in respect of the BOR 2 risk and decided against the applicant.

4. The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 30 March 2017. By its decision dated 13 July 2017, the Board found that the account given by the applicant was neither convincing nor credible. It was found to be implausible that the applicant’s uncles would have targeted the applicant, instead of his mother as the land at no stage belonged to the applicant. The Board also took the view that the delay for the applicant to lodge his non-refoulement claim adversely affected the veracity of his claim. Finally, the Board considered that the evidence given by the applicant was only hearsay and attached little weight to it. The applicant’s appeal to the Board was dismissed.

5. The intended judicial review was in respect of the decisions of the Director and the Board. The Form 86 filed by the applicant on 20 July 2017 did not contain any grounds for judicial review. It was deposed to in his affirmation filed on the same day that:

(1) The land belonged to the applicant’s mother, and the threats by his uncles were directed at him because only the applicant could defend his mother;

(2) The applicant was scared and mentally stressed when he arrived in Hong Kong, and he followed someone’s suggestion to state that he was a businessman when entering Hong Kong;

(3) He was not aware of the procedure as to how the non-refoulement claim was to be lodged, so that he could not lodge his claim earlier;

(4) He was aggrieved by the Board’s finding that his account lacked credibility;

(5) He was not informed by the Director of the use of the Country of Origin Information (“COI”); and

(6) The Director cherry-picked the COI and failed to consider the materials provided by him.

6. The Judge heard the application for leave to apply for judicial review on 13 October 2017. After summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave her reasons in refusing leave in paragraphs [15] to [18] of the CALL-1 form:

“ 15. The applicant seeks to apply for leave against both the Director and the adjudicator but there are no grounds against the director specifically. None that made sense. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken is not made out.

16. The applicant is aggrieved [that] the adjudicator did not find him credible and repeats parts of his claim as well as gives explanations in answer to the adjudicator’s criticisms. I would not interfere with the adjudicator’s finding; it is not unreasonable. In any event, the adjudicator added that even if...