DHARAM PAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1156/2017

[2018] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1156 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 be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 46 (DOB: 15 March 1972). 

2.  The Applicant claimed that he would be ill-treated or killed by the people of the Shiromani Akali Dal (“SAD”) in India.

3.  The Applicant worked in Hong Kong between 1993 and 1996. He returned to India in 1998. He started to support the Congress Party (“CP”) in 1999. He mobilised a lot of people in his area to vote for CP. Later, he was elected by his supports to be their leader in his village.

4.  In January 2007, some SAD people asked the Applicant to join their party. He refused. Those men left.

5.  A week later, the Applicant was assaulted by those SAD men who had asked him to switch to their party. They threatened to kill the Applicant if he still refused to join them next time. The Applicant was injured and hospitalised for a few days. Then he went to the police station. However, a police officer asked for bribe. The Applicant had no money to pay the officer so he left the police station. He sought help from the head of CP in his area but still could not get the police starting to investigate his case.

6.  The SAD people continued to harass the Applicant.

7.  In July 2007, the Applicant went to Singapore to seek non-refoulement protection. He only knew later that no protection was offered in Singapore. He returned to India and went into hiding.

8.  In August 2007, the Applicant went to Nepal. He stayed there for more than six months. He could not find any protection scheme there so he returned to India in 2008. The Applicant did not go home. He lived elsewhere and made arrangement to come to Hong Kong.

9.  In August 2009, the Applicant came to Hong Kong and made a torture claim.

10.  In 2013, the Applicant learned that his parents were severely injured in a car accident. He was told by his friend it was safe for him to return to India then. The Applicant went back to India in June 2013. He did not stay at home but lived elsewhere.

11.  On 8 October 2013, the Applicant was assaulted and robbed by some unknown people. He went to the police station but the police refused to register any report for him. The Applicant later pointed out a robber to the police. Again, the police ignored him. Finally, the Applicant sought assistance from a neighbour’s friend who was a government official. The police then registered a report for the Applicant but it was not accurately made. The Applicant suspected his enemies had instructed the police not to help him.

12.  On 2 September 2014, the Applicant intended to go to Thailand for business. On his way to the airport, he was assaulted and robbed by some men. Those men said someone had sent them to kill him. They beat the Applicant to unconsciousness and dumped him in a bush. When the Applicant regained his consciousness, he went to the police station to report the incident. The police just registered a report but did not deal with his complaint further.

13.  On 5 October 2014, the Applicant left India for China.   He entered Hong Kong illegally in December 2014. He was arrested by the police in late January 2015 and sought non-refoulement protection subsequently.

14.  The Applicant said SAD had formed alliance with the Bharatiya Janata Party (“BJP”), which was the national ruling party.  BJP often abused its power. The Applicant said the police were corrupt and would not arrest the SAD people. He also said internal relocation was not viable because his enemies were powerful and influential. They could locate him anywhere in India.

15.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

16.  On 29 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

17.  Things happened in this order: –

2009-8-24	The Applicant entered Hong Kong as visitor. He was refused permission to land. He then lodged a torture claim.
2013-5-29	The Applicant withdrew his torture claim.
2013-6-19	The Applicant was repatriated to India.
2014-10-5	The Applicant left India for China by air.
Dec 2014	The Applicant entered Hong Kong from China illegally.
2015-1-25	The Applicant was arrested by the police. He later raised a non-refoulement claim.
2016-7-15	The Director interviewed the Applicant.
2016-12-20	The Director interviewed the Applicant again.
2017-1-13	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk).
2017-11-8	The Applicant appeared before the Board for appeal.
2017-12-15	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
2017-12-29	The Applicant applied for leave for judicial review.

Respondents

18.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

19.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents.  The Board is the first putative respondent; the Director is the second putative respondent.

20.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

21.  In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 29 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 15 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 29 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

22.  In the Director’s decision dated 13 January 2017, the immigration officer did not make specific findings on the Applicant's credibility. However, even on the strength of the Applicant's claim the officer considered the alleged enemies had no real intention to kill the Applicant. There were no substantial grounds for believing the Applicant’s perceived risk was real and foreseeable.

23.  The officer found the Applicant's alleged fear was not instigated, consented or acquiesced by the state or officials or persons acting in official capacity.

24.  The officer was aware there were reports of corruption in the India government and police. However, there was also objective country-of-origin information (“COI”) showing ongoing reforms in the country. The officer did not accept reasonable state protection was not available to the Applicant. He considered reasonable internal relocation was also viable.

25.  The officer did not accept the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

TCAB/NCPO (the Board)

26.  The Adjudicator found there were significant inconsistencies in the Applicant’s allegations. She did not find the Applicant a truthful witness. She found the Applicant had fabricated his claim.

27.  The Adjudicator did not accept the Applicant had any real torture risk, persecution risk, BOR3 risk or BOR2 risk. She refused the Applicant’s non‑refoulement claim with respect to all the four applicable grounds.

Grounds for judicial review

28.  In his affirmation, the Applicant had these complaints: –

(a)  lack of legal representation;

(b)  lack of language assistance;

(c)  lack of fair hearing.

Court hearing

29.  In Form 86, the Applicant requested a hearing.  The hearing took place on 8 June 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.

30.  The Applicant said he knew very little English. A friend and a lawyer helped him to prepare Form 86 and the affirmation for the current application of judicial review. His wife was a Chinese woman, who knew Chinese and English well. She read the documents to him for his understanding. The Applicant met his wife in 2012 and they got married in 2018.

31.  The Applicant confirmed all the grounds of judicial review were in the documents. He had nothing to add.

32.  The Applicant also confirmed he had submitted everything to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

33.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

Lack of legal representation

35.  The Applicant complained that he had not been provided with sufficient legal assistance. He had legal assistance from the Duty Lawyer Service up to the Director's decision coming out on 13 January 2017.

36.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

37.  The Applicant complained he had not been given sufficient interpretation/ translation assistance.

38.  The Applicant said he met his wife in 2012. They had stayed together since then and got married in 2018. His wife knew English well. I am sure the Applicant's wife would help the Applicant with the interpretation and translation of English documents for his claim and appeal. The Applicant, therefore, cannot say he had no means to find out if there was any mistranslation/misinterpretation in his non-refoulement claim form (“NCF”). He was only speculating. I am sure the Applicant has much exaggerated his language problem.  

 Lack of fair hearing

39.  The Applicant criticised the Director for failing to attend the appeal hearing before the Board on 8 November 2017.

40.  The Director was excused from attendance in that hearing. The Applicant failed to show how the Director's absence would prejudice his appeal.

41.  I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.   

Conclusion

42.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

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

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] Order 53, rule 4 of the Rules of the High Court.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.