JORAWAR SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL573/2017

[2018] HKCFI 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 573 of 2017

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 Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived on 30 December 2011 as a visitor but overstayed.  He was arrested whilst working illegally and in possession of an identity card belonging to another on 2 July 2013.  Whilst serving a term of imprisonment for several offences he lodged a non-refoulement protection claim on 20 August and 10 September 2013.  Those were rejected by the Director of Immigration (“the Director”) on 23 December 2015 and 1 December 2016.  The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 February 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 1 September 2017 and requested an oral hearing so the application was set down on 27 March 2018.  The applicant was absent, I reserved my decision and I now consider his application on the papers.

Request for a 2^nd hearing date

3.  On 27 March 2018 when the applicant did not appear at the appointed time, the court interpreter called the applicant’s mobile phone number supplied by the applicant on his application form, the Form 86. The applicant answered and confirmed his identity.  He informed the interpreter that he did not receive the notice of hearing posted to him on 10 January 2018 to his address set out in his application but did confirm that that was his address.  When his address was read back to him, he confirmed it was accurate.  I have no reason to doubt what the interpreter relayed to me in open court before I reserved my decision.

4.  On 29 March 2018 the applicant wrote to the court and said he did not receive any court document nor telephone call to confirm the hearing date.  He had moved home and “within a week we visit old house and check the letters or documents but I did not get any documents or letters”. He requested a new hearing date.  He enclosed a tenancy agreement which was dated from 1 February 2018; that is well after the date the notice of hearing was posted to him on 10 January.

5.  He appears to use the excuse that he had moved house and did not receive the notice of hearing but the dates do not tally.  The tenancy agreement postdates the notice of hearing.  Wherever he was living on 10 January 2018 was not at the address related to this tenancy.  His explanation in the letter does not tally with what he told the interpreter over the phone; it would appear he is trying to make excuses for his nonappearance.

6.  I am satisfied from the court files that a notice of hearing was posted to his address as set out in his Form 86.  I see no reason to accommodate his request for a second hearing date, his lack of a reasonable excuse or rather conflicting excuses suggests an intention to delay these proceedings.  Therefore, I proceed to consider his application on the papers.

Extension of time refused

7.  The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.   He is, in fact 3½ months late. His notice of application does not seek an extension of time as relief as it should.  He does give an explanation of sorts; he says he never received it in the post.  On 28 August 2017 he went to the TCAB office in person to make enquiries and he received a copy of the decision.  It would appear this is the date he first knew of the TCAB rejection of his appeal.  He gives no explanation as to why he did not receive it in the post.

8.  I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

9.  The delay is not insignificant and there is no good reason for extending time.  This is because his explanation for the delay is weak and the merits of the substantive application after a perusal of the papers are also weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Background

10.  The basis of the applicant’s claim was that if he were to return to India he would be harmed or even killed by his paternal uncle Sikandar.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

11.  The applicant grew up in the Punjab, had eight years of education and is single.  His father died in 2004 and his mother then secretly transferred four acres of land to him and then leased it out for income.  His paternal uncle owned land adjacent to these four acres and coveted that four acres as well.  From 2010, when he found out the land was in the applicant’s name he began to harass the applicant to transfer that land to him.  At first it was only phone calls but then he began to threaten the applicant in person with groups of men.  The threats became serious and often weekly.  He threatened to kill the applicant and even his mother.  The applicant suffered great stress and anxiety to such an extent that he moved away to an uncle’s house in January 2011.

12.  The applicant was safe there for about four months until the uncle saw him at a family wedding and the harassment continued.  So the applicant’s mother sent him to Hong Kong in December 2011 to escape from his uncle.  There an agent gave him an ID card claiming he could legally live and work in Hong Kong which the applicant believed.

13.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

14.  The applicant has proposed both the Director and the TCAB as respondents as well as interested parties which makes no sense.  In the grounds of his affirmation the only ground against the Director relates to the Notice of Further Decision and it has no merit.  In any event, the applicant has already utilised the channel of appealing the Director’s decision of 23 December 2015 to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  He should have covered all mistakes he says the Director made in his appeal to the TCAB.  In addition, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.

15.  The adjudicator conducted an oral appeal hearing.  He set out the applicable law and key legal principles for the four grounds.  He considered Country of Origin information and found State protection available to the applicant as well as internal relocation a viable option for him.

16.  He considered the applicant’s evidence and applied the law to it.  Even on the applicant’s own facts, he had suffered no physical injury, pain or physical suffering at the hand of his uncle or anyone. He alleged severe mental stress but was able to carry on his daily life; he did not fit the picture of a person tortured by mental suffering.  The adjudicator found that even if he believed the applicant and applied the law to the applicant’s evidence he concluded that he failed to establish a case of non-refoulement under any risk claim be it a risk of torture, BOR 2, BOR 3 or persecution.  The adjudicator confirmed the decision of the Director.

17.  The adjudicator went on to consider that there were aspects of the applicant’s evidence that led him to doubt the credibility of the applicant such as the fact he did not raise a torture claim as soon as he arrived in Hong Kong but overstayed for over 18 months and was arrested whilst working illegally and possessing an identity card relating to another.  His evidence that he did not know he was overstaying, did not know he was working here illegally and did not know the identity card was fake yet still pleaded guilty did not ring true to the adjudicator.

Leave to apply for judicial review

18.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decision of the Director and the adjudicator to be without fault.  They analysed the material, claims and evidence with care.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

19.  The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;

(2) the lack of language assistance given to him/unfairness;

(3) no reason given by Director for rejecting BOR 2 claim/procedural unfairness; and

(4) no attendance by Director at the appeal/not taken seriously.

20.  The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

21.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

22.  The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his non‑refoulement claim form (“NCF”) despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request.  His NCF was completed by him with the assistance of a lawyer and interpreter.  If there was any mistranslation of his claim in his interviews or NCF then it would have already come to light in the Director’s decisions and the TCAB decision.  Since there is no complaint arising from those decisions his fear cannot be justified.  He claims in his affirmation that some claimants made appeals with a copy of their translated NCF but does not specify that they were provided by the duty lawyer service.  There is no merit in this ground.

23.  The third ground submits the Director gave no reason for rejecting his BOR 2 risk.  Even if I considered the applicant could seek leave to apply for judicial review of the Director’s decision out of time and as well as the adjudicator’s decision, there is no merit in this ground.  The adjudicator considered the provisions of BOR 2 and whether the applicant would be subject to any risk of his rights under BOR 2 being violated in light of the assessment of his claim as set out in the Director’s decision dated 23 December 2015.  There is no merit in this ground.

24.  The last ground is perhaps a misunderstanding by the applicant; the fact no one attends the hearing from the Immigration Department does not mean it is not a formal appeal.  Written submissions would have been submitted in advance and attendance of a representative for the Director excused by the adjudicator.  There is no merit in this ground.

Conclusion

25.  If I am wrong and should have granted the applicant an extension of leave to file his application, then I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  This applies to the Notice of Further Decision from the Director.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave to apply for judicial review is refused.

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