THOLIYA AJAY v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1007/2017

[2018] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1007 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 dismissed.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of India who entered Hong Kong illegally on 25 March 2014 and surrendered to the police on 6 April 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 8 April 2014 on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Bharatiya Janata Party (“BJP”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Tehsil Ladnun of Nagaur, Rajasthan, India to a family of supporters of the Congress Party (“CP”).  After leaving school he worked as a farmer and also became a CP’s supporter.  In mid-2013 on the night before the Legislative Assembly Election was held, several supporters of BJP came to the applicant’s home and asked his family to vote for their candidate, and when they refused the men left.

3.  On the following day after the applicant casted his vote at the polling station, he was attacked by BJP supporters until the police arrived and he was taken to a hospital for treatments to injuries in his right ankle and left shoulder.  After his discharge from the hospital the applicant reported the assault to the police but no further action was seen to be taken. Fearing for his own safety the applicant took shelter at one of his sisters’ place at Jayal Village of Nagaur in Rajasthan until late 2013 without any incidents when he felt safe to return home.

4.  However, a few days after his return several BJP men came to his home to demand that he withdrew his complaint to the police or else he would be killed.  When the applicant reported the threats to the police but when they failed to take any action, he went to stay at his friend’s place in Jaipur in Rajasthan for several days before returning home, but with the election for the village head coming up in 2014, his mother advised him to leave India to avoid any further threats from BJP, and so the applicant departed India on 19 March 2014 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) on 30 September 2015 with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 15 January 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim 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 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”).

6.  In his decision the Director found on the facts of the applicant’s case the level of risk that his feared harms from BJP supporters would materialize upon his return to India to be low as indicated by the low intensity and frequency of past ill-treatment from the BJP people when he was in India, that in the absence of any evidence of any involvement of the state or the police in their threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are 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 safely to other areas away from his home district such as New Delhi or Rajasthan where he had stayed with his sister and a friend without any incidents before he left India.   

7.  By a Notice of Further Decision dated 2 March 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 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”).

8.  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 27 January 2016, and for which he attended an oral hearing on 21 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board doubted the applicant’s claimed fear of harms from the BJP supporters for refusing to vote for their party as it found no logical reasons for them to just go after him when the rest of his family who were also stern supporters of CP were left alone unharmed all these years, that in any event that state protection would be available to him if resorted to, and that he can always relocate to other areas in India where it would be beyond the capability or resources of a few BJP supporters to locate him.

10.  On 4 December 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 put forward the following grounds for his intended challenge:

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

(2)  lack of language assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly.

11.  By then the applicant was more than 2½ months late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that such application 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, which means on or before 19 September 2017 for the applicant to file his application but which he only did 2½ months later on 4 December 2017, for which he has never made any application for extension of time nor offered any explanation for his delay in his affirmation until at the hearing of his leave application before me when he claimed never to have received the Board’s decision until long after the stipulated three months period.

12.  I note however that the Board’s decision was sent to his usual last known address which was the same address to which the notice of the hearing of his leave application was sent and for which he did as noted attend.  Be that as it may, and while a delay of more than 2½ months certainly seems inordinate to me, it would be appropriate for me to see whether there is any good reason for extending time by looking at his proposed grounds to assess the merits if any of his substantive application.

13.  For his complaint in ground (1) of not being provided 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: 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 hearing before the Board and to answer questions put to him by the adjudicator without any difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

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

16.  Furthermore, as it has been found and established by both the Director and the Board in their decisions that the risk of harms from those BJP supporters if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, whilst his claim that he cannot relocate anywhere outside of his home village as he needs to take care of his widowed mother is self-defeating by his present action, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.  

17.  In the premises and having proceeded to consider 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.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and as such there is no good reason for extending time to his leave application which is therefore dismissed.

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