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HCAL 1556/2018
[2020] HKCFI 3103
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1556 of 2018
BETWEEN
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Dhillon Sukhraj Singh |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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 P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant entered Hong Kong by air as a visitor on 20/10/2012. He was allowed to stay until 3/11/2012. He overstayed until he was arrested on 12/3/2013. He filed his torture claim on 21/3/2013. He was released on recognizance on 9/5/2013. Legal aid was granted to the applicant on 10/1/2019.[1] Counsel was assigned on 27/2/2019. On 8/10/2019, his solicitor informed the court that he had lost contact with the applicant. Legal aid of the applicant was eventually discharged on 12/5/2020.[2]
BACKGROUND
2. The applicant was born on 22/5/1978 in Jhandiala Guru of Amritsar, Punjab, India. He was a Sikh. He was married with two children. His family was in India. He received education up to matriculation level. He was a farmer. He and family had not joined any organization in India.
3. In 2009, he went to Korea with his brother. He felt attracted to Christianity. He started to join activities organized by the church.After he returned to India in 2010, he went to a nearby church in his home town for 2-4 times a month.
4. On 31/12/2011, some Hindu people vandalized the church and damaged the statue of Jesus Christ. He learnt from his parents that it involved two politicians Rajeev Kumar (‘Mana’) and Ravinder Pal Singh (‘Kuku’). He and some Christians reported the incident to the local police station. The police registered his complaint but did not take any action. He thought it was due to the influence of Mana and Kuku.
5. On 13/1/2012, when he was drinking and chatting with some Christian friends at a market in Jhandiala Guru, he overheard some Hindu people talking about vandalizing a church. He and his friends were very angry. On the way home, they walked past a Hindu temple. They vandalized the temple. At that time, they were drunk and angry. A priest appeared. They left.
6. He was afraid that the Hindu people might take revenge. The next day, he fled to his uncle’s place in Uttar Pradesh. His friends also went into hiding. His parents told him some Hindu people asked about him one to two times a month. It was related to the vandalizing of the Hindu temple. They did not harm or threaten his family.
7. In August 2012, his parents told him that one of his Christian friends was killed after that friend returned to the home town to settle the dispute. The family of that friend was threatened not to report to the police.
8. He was in great fear. His brother arranged him to flee to Hong Kong for protection. He left India on 19/10/2012 through official channel with his passport.
9. He last contacted his family in 2015. They told him that the Hindu people still asked about him every 10-15 days. There was no harm or threat to his family.
10. He had no confidence in the Indian authorities. He would not have protection under a Hindu controlled government. Mana and Kuku could influence the police who were corrupt. He had not considered internal relocation to Delhi or Chandigarth. There was no good place in India.
11. He feared that the Hindu people would kill him on his return to India.[3]
The Decision of the Director
12. The Director found that the risk of harm was low for the following main reasons:[4]
(a) He fled to another place the next day after vandalizing the Hindu temple. Although the Hindu people came to his home asking about him, they never threatened or harmed his family. There was no injury which amounted to “a minimum level of severity”.
(b) Two politicians allegedly involved in the dispute. However, there was no evidence that their respective parties were involved. The applicant’s speculation that they would influence the police was not reliable.
(c) There was very little detail about the death of his Christian friend. It could hardly be used to support any perceived fear of harm by the applicant.
(d) The applicant overstayed for nearly 4 months before filing the non-refoulement claim. His conduct was inconsistent with a person in genuine fear of harm.
13. The Director accepted that there were corruption, human right violations and ineffective police actions, however, there were on-going reforms in India. There was effort to bring police officers to justice and enhance accountability. Special channels were established to tackle corruption (Anti-Corruption Bureau), and to tackle human right problems (National Human Rights Commission). One could complain to the Superintendent if a proper investigation was not carried out. There were also steps taken by the government to maintain religious freedom and uphold the rule of law. The Director was satisfied that there was reasonable State protection.[5]
14. The Director pointed out that the law allowed internal relocation. India was a large country with huge population. There were reasonable options for relocation, e.g., New Delhi and Chandigarth. These cities were large with job opportunities. It was not unduly harsh for the applicant to relocate given his background.[6]
15. For the claim under BOR 3, the Director found that the applicant did not sustain any injury which amounted to ‘a minimum level of severity’. There was no genuine and substantial risk of ill-treatment if he returned to India. The BOR 3 claim failed.[7]
16. For persecution risk, the applicant’s dispute with the Hindu people was about the vandalizing of the temple. It was not connected to religion. The dispute was not within any one of the reasons of persecution risk according to the Refugee Convention. This basis of claim failed.[8]
17. For torture risk, the applicant did not sustain any pain or suffering which would be in the categories as defined by s 37U (1) of the Immigration Ordinance. There was reasonable State protection. There was no evidence of official involvement, acquiescence or instigation. The applicant was able to travel freely. He was not targeted by the Indian government.[9]
18. The Director rejected the above claims on 28/10/2015.
19. The applicant did not submit further evidence in relation to BOR 2 claim despite the invitation by the Director in a letter dated 14/3/2017. The Director then assessed the BOR 2 claim based on existing information. The Director found that there was no evidence to support arbitrary deprivation of the applicant’s life. The Director rejected the BOR 2 claim on 13/4/2017. [10]
The Decision of TCAB
20. The adjudicator held an oral hearing on 12/5/2017. The adjudicator set out the background of this case as summarized above. The adjudicator rejected the appeal on 27/7/2018. The main reasons were as the following:
Torture claim
(a) The applicant brought trouble upon himself in vandalizing the Hindu temple in a fit of drunken fury. He left home the following day and never confronted by any Hindu people. In fact, nothing eventful happened to him.
(b) The alleged murder of one of his Christian friends was not supported by any detail. The family did not report to the police.
(c) There was no torture inflicted on the applicant for the purposed as defined in s.37U of the Immigration Ordinance.
(d) There was no evidence of State involvement. There was no consent, instigation or acquiescence by any public official. In fact, the applicant or his family did not report their encounters with the Hindu people to the police.
(e) The government had taken steps to tackle corruption and police misconduct. The National Human Rights Commission was set up to investigate human rights violations. There was an Anti-Corruption Bureau to investigate corruption. A person might complain against police inaction to the Superintendent or a Magistrate under the Code of Criminal Procedures. The law would not allow inter-religious strife and protect freedom of religion.
(f) The law allowed relocation. There was reasonable relocation option such as New Delhi. The applicant was never located while in hiding. It would be very difficult for the Hindu people to locate him outside the home town.
(g) Given the above, torture claim failed. [11]
BOR 2
(h) There was no evidence that the Indian government might impose capital punishment on the applicant for tearing the Holy Book[12].
(i) There was no evidence that he would be subject to personal and real risk of arbitrary deprivation of life.
(j) There was no risk under BOR 2. This claim failed. [13]
BOR 3
(k) The adjudicator concluded that there was no injury inflicted upon the applicant. There was no ill-treatment. There was no real risk of CIDTP under BOR 3. This claim failed.[14]
Persecution risk
(l) The adjudicator did not specifically rule on this claim. However, she had correctly set out the relevant legal principles. She had also pointed the relevant evidence and the COI.
21. The adjudicator rejected all claims on 27 July 2018.
Judicial Review
22. The applicant applied for leave to apply for judicial review on 6/8/2018. In his supporting affirmation, he pointed out several points which is dealt with below:
(a) The applicant complained that he was not represented during the appeal. He had no legal advice before the appeal.
(i) It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[15]The applicant had legal assistance in presenting his case to the Director. There was no substantial change of his case before the TCAB. Given the circumstances, I do not find any irregularity even though he was not represented before the TCAB.
(b) The applicant pointed out that the hearing bundle was only available a few days before the scheduled hearing at the TCAB. Most documents were in English. He did not have sufficient time to prepare.
(i) The most important document in the hearing bundle should be the decision of the Director. It was sent to the Duty Lawyer Scheme on 28/10/2015. I am sure the DLS had translated the decision to the applicant.
(ii) As to the NCF and the screening interview before the Director, the applicant was assisted by the DLS. He should have fully understood the content.[16] The short notice, even if accepted, would not give rise to unfairness.
(iii) The applicant pointed out that he could not understand the written skeleton argument of the Director in the hearing bundle. In my view, the applicant should seek assistance from others according to his resources. There is no duty on the part of the Director to supply translated documents. The argument of the Director set out in the skeleton must have been translated to him during the hearing at the TCAB. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.
(iv) I notice that both the Form 86 and the affirmation for the leave application were in English. They are well structured. This indicate that the applicant was able to find assistance.
(v) The applicant was able to raise four grounds of appeal which were summarised by the adjudicator in her decision.[17] He was able to answer the questions put by the adjudicator. This shows that he understood the proceedings. [18]
(c) The applicant complained that the COI and other news sources relied on by the adjudicator were outdated and not officially recognised.
(i) Under the “high standard of fairness”, the Director and TCAB have the duty to draw the claimant’s attention to issues requiring clarification. At the same time, the applicant bears the burden of proving his claim. [19] He should have filed relevant information in support of his claim especially when he was assisted by the DLS in preparing his claim. It would not be appropriate for either party to sit back and let the other party prove or disprove the claim. It should be one of joint endeavour. [20]
(ii) The COI concerning the situation in India mainly came from the United States Department of State, the Central Intelligence Agency US and the UK Border Agency. They are mainly from the year 2014-2015. They are State agencies collecting information through diplomatic channels. The information provided should be highly relevant in assessing the situation in India.
(iii) As to the media reports, they included The Times of India, The Hindu and Reuters and Wikipedia. It may be difficult to assess their reliability. However, they were used to corroborate the findings in the COI reports by the State agencies. They were not the primary source of assessment of the situation in India.
(iv) It is true that the adjudicator had not checked the updated reports after 2015. On the other hand, the applicant is unable to point out any substantial change or deterioration of circumstances in India since 2015. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 28/10/2015. Had there been any relevant information, the applicant should have sufficient time to raise it during the hearing with the TCAB in May 2017.
(v) Ultimately, the crucial issue is the evaluation of risk of harm in light of all the evidence before the adjudicator. She found that there was no torture,[21] there was no harm at all which attain the minimum level of severity [22] and there was no real risk that the applicant would be sentenced to death for tearing the Hindu Holy Book[23]. In my view, there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments meeting the high threshold required by law.
(vi) In his Form 86 [24], the applicant mentioned 3 accounts/reports in 2010-2011 which he claimed would show the human rights circumstances in India. In my view, the relevant time is the time of the assessment before the TCAB. Secondly, a general situation of violence is insufficient, there must be personal risk of torture, BOR 2, BOR 3 or persecution. These 3 accounts/reports cannot take the applicant’s case any further.
(vii) In the circumstances, I do not see any irregularities even though the COI are not the most updated version.
(d) In the Form 86, the applicant complained that the adjudicator failed to call for psychological and psychiatric reports at any stage. The applicant had not raised any evidence to support that such reports were necessary. This is a general assertion which is of no merits.[25]
(e) The applicant complained that the letter inviting him to file further evidence for BOR 2 claim was sent to his previous address by the Director. He further claimed that he had informed the Director of the change.
(i) The invitation letter, dated 14/3/2017, for filing of BOR 2 information was not available. I can safely assume that it should have been sent to his address at Ng Ka Tsuen, Kam Sheung Road as the further decision of the Director.[26] It is the same address as recorded in the Form 86 which was filed on 6/8/2018. There was no change of address as he claimed. In fact, the applicant had not complained about this to the adjudicator. It was not a ground of appeal.
(ii) The applicant has a duty to update his address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. Even if he had changed his address, he should have arranged the mail to be diverted to him. He should bear the consequence of the failure to inform any change of address.
(iii) At the time of the hearing before the TCAB, the adjudicator was aware of the decision of the Director on the BOR 2 claim. The applicant gave evidence in the hearing. He should have sufficient chance to elaborate his grounds again.
(iv) I do not see any unfairness in this aspect.
23. The adjudicator had not made a specific ruling on persecution risk in her decision. However, for the reasons below, I do not see any material irregularity warranting the grant of leave:
(a) The adjudicator must have considered the decision of the Director who set out clearly the reasoning for rejecting the claim on persecution risk.[27]
(b) In the decision of the TCAB, the adjudicator had set out correctly the legal principles relevant to the assessment of persecution risk.[28]
(c) The adjudicator had pointed out that the applicant brought trouble upon himself by vandalising the Hindu Temple, in a fit of drunken fury, over the acts of some Hindus who damaged the church. He was never confronted by the Hindus and there was no threat directly to him. [29]
(d) The adjudicator pointed out that there was no evidence of a consistent pattern of gross, flagrant or mass violation of human rights in India. [30]
(e) The adjudicator cited a USSD report that the Indian government recognised and protect minority religious groups including Christians. [31]
(f) I accept that there is a duty for the adjudicator to give reasons and make specific ruling. However, where all the evidence point clearly to an obvious conclusion, the failure to give reasons for a specific ruling would not affect the rationality of the whole decision.
(g) In my view, the adjudicator was fully alive to the issues of persecution risk. She was fully aware of the principles and evidence. It was an unfortunate oversight. I do not think this would affect the validity of her decision.
24. In the hearing held on 17/11/2020, the applicant said he had nothing to update. He had no one to assist him in obtaining evidence from India. His brother was in Korea. His mother had passed away. His father was blind.
25. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
26. In my judgment, there is no error of law or procedure. The decisions are reasonable.
CONCLUSION
27. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 18th day of December 2020.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 18 December 2020
Dhillon Sukhraj Singh
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 December 2020
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2535/15/11/47/IN537
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1152/15 & RBCZ 9000737/17 (Formerly RBCZ 253/13)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] A hearing was originally fixed on 25/1/2019 for his leave application. It was adjourned for the applicant’s solicitor to prepare.
[2] Decision of the Director, §§1 & 22.
[3] Decision of the Director, §§3-21.
[4] Decision of the Director, §§27-30.
[5] Decision of the Director, §§32-33.
[6] Decision of the Director, §§36-39.
[7] Decision of the Director, §§40-42.
[8] Decision of the Director, §§43-45.
[9] Decision of the Director, §§46-49.
[10] Decision of the Director dated 13/4/2017.
[11] Decision of the TCAB, §§68-125.
[12] According to the Indian Penal Code, it would only be imprisonment for 2-3 years.
[13] Decision of the TCAB §§126-131.
[14] Decision of the TCAB §§132-135.
[15] See Zafar Muazam [2018] HKCA 176, at paragraph 22.
[16] Decision of the TCAB §§3-5.
[17] Decision of the TCAB §§14-17.
[18] The affirmation of the applicant dated 6/8/2018.
[19] That there are substantial grounds for believing that he would be in danger of being subject to risk of torture, ill-treatment/CIDTP or persecution.
[20] TK v Michael Jenkins, CACV 286/2011, §§19-25. Prabakar [2005] 1 HKLRD 289, §§52—55. MI CACV 69/2014, §§39-42.
[21] Decision of the TCAB §§122-125.
[22] Decision of the TCAB §§133-134.
[23] Decision of the TCAB §§129-131.
[24] Dated 6/8/2018, page 17, §2.
[25] Form 86 dated 6/8/2018, page 16, §7.
[26] Decision of the Director dated 13/4/2017, §1.
[27] Decision of the TCAB §§6 & 66 and decision of the Director, section C.
[28] Decision of the TCAB §§63-64.
[29] Decision of the TCAB §70.
[30] Decision of the TCAB §85.
[31] Decision of the TCAB §§116-117.
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