VIJAY KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1032/2017
HCAL 1033/2017
[2018] HKCFI 1977

HCAL 1032/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1032 of 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1033 of 2017

BETWEEN

(Heard Together)

 Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The applicant in HCAL 1032/2017 (“A1”) is the husband of the applicant in HCAL 1033/2017 (“A2”) who are both nationals of India arrived in Hong Kong on 3 October 2015 with permission to remain as visitors up to 17 October 2015 when they did not depart, and instead overstayed until 19 October 2015 when they were arrested by the police.  After they were referred to the Immigration Department for investigation, the applicants lodged their non-refoulement claims on 21 October 2015 on the basis that if they returned to India they would be harmed or killed by the elder brother of A1 over certain land dispute.  They have since been released on recognizance pending the determination of their claims during which A2 gave birth to a daughter on 21 November 2015. 

2.  A1 was born and raised in Village Srangwal, District Jalndhar, Punjab, India.  After leaving school he worked in the farmland owned by his father in the village which was coveted by A1’s elder brother who was influential and politically well-connected through his wife’s family, and who had always wanted their father to sell the land so that he could get the sale proceeds, but when their father refused as he needed A1 to farm the land to produce income and thus led to frequent conflicts between A1 and his elder brother.

3.  One day in January 2006 while A1 was working on the farmland, he was approached by his elder brother and his followers who demanded that he stopped working on the land so that it could be sold, and when he refused they started to hit him with wooden sticks until the neighbors intervened, but before they left his elder brother threatened to kill A1 if they saw him working on the farmland again.

4.  Afterwards when A1 told his father of the threats, his father decided to let out his farmland to others to farm and sent A1 to Dubai where he worked as a carpenter.  In 2014 A1 returned to India for visit and married A2 before returning to Dubai.  In 2015 when he heard that his elder brother had been harassing and ill-treating A2 in his absence, A1 decided to return to India to be with A2 during which he resumed working in his father’s farmland.  Soon his elder brother started to harass him again, and one day in February 2015when A1 was working on the land his elder brother again confronted him with his followers and assaulted him with wooden sticks until they were restrained by the neighbors.

5.  After his father learnt about the assault, he accompanied A1 to the local police station to report the incident, but when the police failed to follow up with any action, and when the harassments and threats from the elder brother continued, the applicants moved to stay with A2’s parents to avoid the elder brother, but when A1 learnt from his parents that his elder brother was looking for him and his wife, the applicants decided that it was no longer safe for them to remain in India and departed on 29 September 2015 for China and then Hong Kong where they subsequently lodged their non-refoulement claims, for which they later completed their respective Non-refoulement Claim Form (“NCF”) on 23 March 2016 with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 24 August 2016 the Director of Immigration (“the Director”) rejected the applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director found the applicants’ conflict with A1’s elder brother a private land dispute which has nothing to do with politics or any connection with any state interest or policy, that the farmland was owned by A1’s father which the elder brother could not obtain by harming or killing the applicants, that state or police protection would be available to the applicants if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicants as able-bodied adults with work experiences to move safely to areas away from A1’s home district such as New Delhi where it would be well beyond the capability and resources for A1’s elder brother to locate them. 

8.  By a Notice of Further Decision dated 1 August 2017 the Director again rejected the applicants’ claims in the absence of any response from them to an earlier invitation to submit additional facts relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal they filed on 2 September 2016, and for which they attended an oral hearing on 17 October 2017 before the Board during which it was mainly A1 who gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 November 2017 their appeals were dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found A1’s account of the conflicts between him and his elder brother over their father’s farmland incoherent, self-contradictory and vague, that he was unable to explain serious difficulties in his account or to provide detailed information about the events he claimed that led him to flee India, that the information he provided was inconsistent on material points with what he had previously maintained before the Director, that it did not make sense for the elder brother to threaten A1 instead of his father who owned the land, and that A1’s claim was so fundamentally incoherent as to be incomprehensible and mutually contradictory that the Board concluded with absolutely no doubt at all that his claim was simply a fabrication with no basis whatsoever in truth and that no credence can be attached to any of the claims he has made.  

11.  On 7 December 2017 the applicants filed their Form 86 in their respective proceedings for leave to apply for judicial review of both the decisions of the Director and the Board, and in their identical supporting affirmation of the same date they set out their identical grounds for their intended challenge as follows:

 (1) lack of legal representation in their appeals before the Board;

 (2) lack of legal assistance for not providing them with any translation of their respective NCF to enable them to find out if the interpreter had translated the basis of their claims properly;

 (3) wrongful exercise of case management power on the part of the Board for failing to properly rely on the relevant COI to assess police corruptions and misbehavior of law enforcement authorities in its consideration of their claims;

 (4) wrongful exercise of case management power on the part of the Director for failing to provide any proper any proper explanation for rejecting their claims under BOR 2 risk; and

 (5) lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at their appeal hearing.   

12.  For their complaint in ground (1) of not being provided legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The applicants already had the benefit of legal representation in presenting their case to the Director, and were able to testify and make representation in their appeal hearing before the Board and to answer questions put to them by the adjudicator without difficulty.  In the circumstances I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

14.  As for their complaint under ground (2) of not being provided with a translation of their NCF, it is clear that their NCF were completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of their claims have indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merits.

15.  Regarding the complaint in ground (3) over the Board’s improper reliance of the COI in its assessment of police corruptions and effectiveness of law enforcement authoritiesin India, the applicants did not provide any particulars or specifics or elaboration in supportof this complaint, and upon close scrutiny of those COI listed and referred to by the Director and the Board in their decisions, again I am unable to find any basis for this complaint of the applicants.

16.  As for their ground (4) it is plainly wrong for the applicants to claim that no explanation was given by the Director in rejecting their claim under BOR 2 risk, which the Director clearly did in paragraphs 4 – 6 of his Notice of Further Decision, and in the absence of any additional facts from the applicants in support of their claim relevant to BOR 2 risk, the Director was perfectly entitled to assess and then reject their claim on the facts and evidence earlier presented by them with legal representation, and I do not see any basis or merits in this complaint of the applicants.   

17.  As for their complaint under their last ground over the non-attendance of the Director at their appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for the appeal which is a rehearing of their claims to be before a different person is actually a safeguard for fairness, and I fail to see how the applicants could be prejudiced or adversely affected by the non-attendance of the Director at their oral hearing before the Board.  There is simply no basis or merit in this ground of the applicants either.

18.  The fact is that the applicants’ claims were rejected by the Board essentially on A1’scredibility for the detailed reasons and analysis set out in paragraphs 19 – 35 of its decision that any attempts to challenge or criticize its reliance on COI or its assessment of the general situations of police and law enforcements in India seem to me futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers.  With the adjudicator’s clear findings as to the core of A1’s claim of the conflict with his elder brother over their father’s farmland, I do not see any basis or reasons for interfering with the Board’s decision.

19.  Furthermore, as it has been found and established that the risk of harms from the elder brother if real is a localized one and that it is not unreasonable or unsafe for the applicants to relocate to another part of India, there is simply no justification for affording them non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

20.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.

21.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave applications.

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