SANDHU RANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 849/2017

[2018] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 849 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 29-year-old national of India who first arrived in Hong Kong from Macau on 27 March 2015 but was refused permission to land by the Immigration Department and was removed to Macau on the same day.  On 30 March 2015 he returned to Hong Kong and immediately lodged a non-refoulement claim with the Department on the basis that if he returned to India he would be harmed or killed by the supporters of rival political party Akali Dal Party (“ADP”) for refusing to join their political party.

2.  The applicant was born and raised in Village Sarhali, Tehsil Zira, Firozepur, Punjab, India to a family of supporters of the Indian National Congress Party (“INCP”) where his parents and sister still live.  After leaving school the applicant worked by distributing newspaper for a news agency, and joined INCP as a member in 2011, but soon some ADP supporters started to approach him and pressed him to leave INCP and to join ADP instead, and when he refused, they would keep pressuring and harassing him whenever they saw him in the streets.

3.  In 2013 there was a village council election with two candidates respectively from ADP and INCP against each other, during which there were clashes between the supporters of the two parties in which the applicant was involved and was injured during one of the incidents when he was hit on the head by a rock, and on another occasion he and his fellow members of INCP were arrested and detained by police for one day after ADP supporters had made false charges against them.

4.  In 2014 there was another election for members of the Parliament during which the applicant participated by putting up posters and attending rallies, but one day he was abducted by several masked ADP people for refusing to join ADP and was brought to a farm where he was hung upside down from a tree and was punched and kicked and with his head held in a bucket of water until he lost consciousness.  When he woke up the ADP people were already gone, but when he later reported the incident to the police, they only took a statement from him without following up with any further action.

5.  Several days thereafter in one of INCP rallies the applicant and his fellow members were attacked by ADP supporters with wooden sticks and baseball bats causing bruises to the applicant’s back.  Thereafter some ADP supporters came to his home when he was not in and threatened and attacked his father with wooden sticks that caused bruises to his limbs and his back.  After the ADP candidate won the election, and when the applicant started to receive threatening phone calls from the ADP supporters, he was advised by his father to take shelter at his aunt’s place at Village Golwaad, District Tarntaarn, Punjab where he stayed for 5 months without any incident until his aunt saw some men coming to the village asking about him when he decided to move to his cousin’s place in Guru Nanak Mahalla, Amritsar where he stayed for another 5 months.

6.  However, in early 2015 his father was intercepted by some ADP people on the street who took hold of his mobile phone and obtained the applicant’s phone number, and as a result the ADP people started calling the applicant on the phone demanding that he should return to his home village to join ADP or else they would locate him and kill him.  Afterwards the applicant was advised by his father to leave India for his own safety, and so he arrived in Hong Kong on 30 March 2015 and lodged his non-refoulement claim, for which he subsequently completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 30 July 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim 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”).

8.  In his decision the Director found on the facts of the applicant’s claim that the risk of harm from the ADP people upon his return to India as low given his low position in INCP that it was doubtful that they would still have any adverse interest in him, that objective Country of Origin Information (“COI”) show that state protection would be available to him if resorted to, and that reasonable internal relocation alternatives are also available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to any areas other than his home district where he can live and work safely from any threats of the ADP people. 

9.  By a Notice of Further Decision dated 1 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim 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”). 

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 14 August 2015 and for which he attended an oral hearing on 15 February 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board agreed with the Director that there are no substantial grounds for believing that the applicant would be at risk of being harmed upon his return to India, and that objective COI show that state protection would be available to him if resorted to in the event that such risk does exist.

12.  On 6 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he puts forward the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance for not being provided with any translation of his NCF so that he was unable to find out if the interpreter had properly translated the basis of his claim;

(3) lack of communication among authorities for not receiving the letter from the Director inviting him to submit additional facts regarding BOR 2 risk or the Notice of Further Decision; and

(4) lack of fair hearing for not requiring the attendance of the Director at his oral hearing before the Board.

13.  For his ground (1) of not being provided with legal representation in his 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: see 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.

14.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the Adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is arguable.

15.  As for his complaint under ground (2) of not being given a translation of his NCF so that he could make sure that the basis of his claim had been properly translated or interpreted, it is clear that his NCF was completed on his instructions with legal representation from the DLS, and that he was assisted by an interpreter at his appeal hearing before the Board, hence in the absence of any particulars or specifics from him to demonstrate that the basis of his claim has indeed been wrongly or inaccurately interpreted, I find this ground simply speculative and without any merit.

16.  Regarding ground (3) in which the applicant complains of not receiving the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk, or the subsequent further decision of the Director, if indeed it is true that he never received the Director’s letter dated 15 November 2016 inviting him to submit additional facts relevant to BOR 2 risk or his further decision dated 1 December 2016, it is clear that by the time of his appeal hearing on 15 February 2017 before the Board, he would have learnt about them from the hearing bundle provided to him by the Director, but of which he never raised any issue to the adjudicator at the hearing or to the Board thereafter or made any attempts to submit any additional facts or materials up to the time of its decision on 1 September 2017.  Even now in his leave application he did not state or produce any additional information relevant to BOR 2 risk or otherwise.  In the circumstances I do not find any merit in this complaint of the applicant.

17.  As for his last ground about the non-attendance of the Director at his 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 his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no basis or merit in this ground of the applicant.

18.  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 applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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