AMRIK KHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 879/2017

[2018] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 879 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:

1.  The applicant is a 27-year-old Indian man who entered Hong Kong on 21 June 2011 with permission to remain as a visitor until 5 July 2011, but he did not depart and instead overstayed until 5 March 2013 when he surrendered to the police.  After he was referred to the Immigration Department for investigation, on 7 March 2013 he raised a torture claim with the Department on the ground that if he returned to India he would be harmed or killed by a gang of drug addicts, or by the Sikhs majority in his home village who wanted him and his family out of their village, or by his girlfriend’s family who were against their relationship.

2.  The applicant was born and raised in Bhagta in the Bhatinda District of Punjab, India to a family of Muslims from the Sakkey caste.  His father was a farmer and his mother a housewife.  He has two younger siblings both still at school with his younger brother studying in New Zealand.  He had 13 years of formal education and was in a degree course in pharmacy prior to his departure from India for Hong Kong in 2011.

3.  In 2007 when he was still in his teens the applicant was elected as the Muslim leader of his village and became involved in organizing charitable work to help the poor in the village which irked the Sikhs majority who became hostile towards him and his family.   

4.  In 2010 the applicant discovered several of his Sikh friends were addicted to illegal drugs who would ask him for money from time to time to satisfy their addictions.  Initially the applicant would pay them money from his parents or earned from odd jobs, but later when he decided to stop doing so, his friends became angry with him and had attacked him twice which led to no serious injury but the applicant started to become fearful of them.

5.  Later in the same year the applicant started dating a Sikh girl PT from a wealthy and powerful family in the village with close connections with the political party SAD and the local police.  As he knew that her family would not approve their relationship due to their different religions and background, they therefore kept it a secret from her family who however eventually discovered it and threatened to kill the applicant if he did not put an end to the relationship.

6.  One day in late January 2011 the applicant was confronted by eight to nine men armed with iron rods and other weapons with demands that he put an end to his relationship with his girlfriend, and when he refused, he was attacked by them with weapons until he passed out.  He was then taken to the hospital for treatment where the police took a statement from him, but did not later follow up with their investigation as the applicant suspects it was due to the influence of his girlfriend’s family.

7.  Thereafter his girlfriend’s family continued to make threatening phone calls to him but still the applicant continued with the relationship until one day in April 2011 when he was again attacked by members of her family with other men on the street until he lost consciousness.  He was then taken to the hospital for treatment and again after taking a statement from him the police did not do anything further about the attack.

8.  Upon discharge from the hospital the applicant took shelter at his friend’s place in Ahmedabad for convalescence, but one day in about mid-June 2011 when he saw men armed with guns and baseball bats approaching his friend’s house, he knew they were coming after him and therefore escaped from the backdoor and fled to New Delhi from where he flew to Hong Kong on 21 June 2011 and subsequently raised his torture claim, and later completed a Non-refoulement Claim Form (“NCF”) with legal assistance and representation under the Duty Lawyer Service.

9.  By a Notice of Decision dated 26 January 2016 his claim was rejected by the Director of Immigration (“the Director”) on all then 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 (“CIDTP”) 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”).

10.  In his consideration of the applicant’s claim the Director applied all the relevant principle and criteria and took into account of all the materials provided by him including the medical report of his injuries sustained during the attack in April 2011 and its newspaper clip of that attack, and in accepting that he was indeed attacked on that occasion and that his girlfriend’s family may have been involved, but on his own admission that he has ceased any contact with her since April 2011, the Director found no plausible reason to believe that the applicant’s perceived risk of harm from her family has persisted today, whilst his perceived fear of risk from either the drug addicts or the Sikhs is unsupported by any reliable evidence other than his own bare assertions, in particularly when his parents and sister are still living in his home town without any incidents.

11.  The Director also noted the absence of reliable evidence to suggest any involvement of the police in the disputes between the applicant and his girlfriend’s family, or for that matter those with the drug addicts or the Sikhs in the village, and took into account and consideration of objective Country of Origin Information (“COI”) to conclude that it is not accepted that the applicant would face any genuine or substantial risk of being subjected to harm under torture risk, BOR 3 risk or persecution risk, and that reasonable state protection and internal relocation alternatives are available for the applicant as an able-bodied young man with good education to return to India to live and work safely in New Delhi or other cities away from those threats or risks asserted by him.

12.  By a Notice of Further Decision dated 2 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

13.  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 1 February 2016 and for which he attended an oral hearing in person before the Board on 9 October 2017 during which he declined to give further evidence but did answer all the questions put to him by the adjudicator for the Board.

14.  On 10 November 2017 his appeal was dismissed by the Board which confirmed the decisions of the Director.  Essentially the Board did not find the applicant to be a credible witness and rejected his stories as true.  The adjudicator gave his detailed findings on the applicant’s credibility in paragraphs 64 – 72 in the decision and concluded that while his story about the threats from his girlfriend’s family is plausible, it is difficult to see why they would still be out to harm him if he has had no further contact with PT since 2011, that on the facts of the case he does not face any real risk of death, torture, CIDTP or persecution if refouled, and that even if he did face such risk he could escape it by means of internal relocation to many other cities in such a large country as India.

15.  On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he set out the following grounds for his intended challenge:

 (a) lack of legal representation in his appeal to the Board;

 (b) lack of legal/language assistance in the translation of his NCF for him or to assist him to deal with the Director’s invitation to submit additional facts relevant to his claim under BOR 2 risk;

 (c) wrongful exercise of case management power in rejecting his claim on credibility and in giving undue weight to COI in its assessment of the law enforcement situation in India; and

 (d) lack of fair hearing in not requiring the Director to attend his oral hearing before the Board.

16.  For the first ground of no legal representation in his appeal before the Board, the Court of Appeal has 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. 

17.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to answer questions from the adjudicator for the Board without any problem, and even now in his leave application for judicial review including an oral hearing when he appeared in person before me, he never stated or outlined what further information or argument which he wished to make but unable to do so in his appeal before the Board.  I do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

18.  As for ground (b) in which the applicant complains of lack of legal assistance in translating his NCF for him and to assist him in submitting additional facts or information at the invitation of the Director which may be relevant to his claim under BOR 2 risk, the invitation letter from the Director was dated 17 May 2017 while the Director’s further decision rejecting his claim was dated 2 June 2017, if indeed there were additional facts which he wished to produce that would help his case but which he was unable to before the Director’s decision, he would still be able to do so during his appeal before the Board when the oral hearing in which he attended only took place some four months later on 9 October 2017, but he never raised it during that hearing, nor did he even up to now in his leave application for judicial review including his oral hearing before me on 22 March 2018 state or clarify what information regarding BOR 2 risk that he wished to provide but could not before the Director or the Board.  On the facts of his case I am of the view that the assessment of BOR 2 risk could effectively be made before the Board on the same materials presented earlier on his behalf to the Director when he had legal representation, and I do not see anything amiss arising from lack of legal or language assistance regarding BOR 2 risk on the facts of his case.

19.  Regarding ground (c) of wrongful exercise of power in the assessment of his credibility and of giving undue weight to COI in assessing the law enforcement situations in India, as already noted above, the adjudicator had the benefit of hearing the applicant at the oral hearing on 9 October 2017 in his answers to the many questions raised with him, and on the facts of the case the Board was certainly entitled to reach its conclusion as it did on the applicant’s credibility for the detailed reasons given in the decision, I do not see anything amiss with this exercise of discretion, nor with the way that the Board took into account of objective COI both which corroborate the applicant’s concerns over police corruption balanced with the on-going reforms by the government to monitor and improve police’s efficiencies as well as its assessment of the availability and reasonableness of internal relocation alternatives to the applicant in the event of him being refouled to India.

20.  As for the last ground that the Director should have been required to attend the hearing of his appeal before the Board, there is no rule requiring the mandatory attendance of the Director, nor do I see any merit in the applicant’s argument for him to do so, as after all the appeal is essentially a rehearing of the applicant’s claim before the Board and I fail to see any prejudice to the applicant of the Director’s absence at the hearing or in the process of his appeal.

21.  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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

22.  For the reasons given 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