HANS NIRMAL SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 53/2018

[2018] HKCFI 2185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 53 of 2018

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 refused.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of India who arrived in Hong Kong on 10 March 2014 but when he was refused permission to land by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain members of rival political party Akali Dal Party (“ADP”) and for his pursuit of compensation against them over his father’s death in a traffic accident.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Budh Singh Wala, Punjab, India.  In 1992 when he was just about one year old his father was hit by a vehicle and died in the traffic accident, and although the people who caused the accident were later ordered by the court to pay compensation to the applicant’s family, no compensation had yet been received by his family and the applicant suspected that it was because they were supporters of the ruling party ADP and decided that his family should file another legal action against them.

3.  In 2006 he followed the footsteps of his family to support the Congress Party (“CP”) by regularly attending their meetings and rallies in his home village.  Soon he attracted the attention of MB the local leader of rival ADP who tried to persuade him to join ADP and to withdraw his family’s action for compensation against those ADP supporters, but when the applicant refused, MB and his followers started to harass and threaten him.

4.  One day in 2011 the applicant was confronted by some of MB’s followers with the same demands, and when he refused they threatened to kill him if he still refused to meet their demands.  Thereafter they would repeat the same threats whenever they ran into the applicant.

5.  On another occasion in 2012 when the applicant ran into MB and his followers, they threatened him again and started to slap him and push him around until some passers-by intervened.  Afterwards the applicant reported the matter to the local police but they were not keen to help.

6.  One day in 2013 after attending a court hearing of his family’s court case for compensation over his father’s death, the applicant was confronted by MB and his followers who slapped him on the face and threatened him to withdraw his family’s court case.

7.  The threats however escalated in July 2013 when the applicant was threatened by MB and his followers armed with pistols and rifles that they would make false charges against him if he still ignored their demands.  When he later informed his mother of their threats, he was advised that he should leave India for his own safety, and so on 10 March 2014 he departed for Hong Kong and raised a non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 8 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 23 June 2014 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 the Hong Kong Bill of Rights (“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”).

9.  In his decision (“the Director’s First Decision”) the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from MB and his followers upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that their behavior indicate that their threats against the applicant were not political but rather to press him to stop or withdraw his family’s court action for compensation over his father’s death, that the absence of any official involvement that state protection would be available to the applicant if resorted to, and that reliable and 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 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other area away from his home district such as Delhi where it would be difficult if not impossible for MB or his followers to locate him.

10.  The applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 3 November 2014 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 March 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision (“the Board’s 1^st Decision”) the Board accepted that it was plausible that the applicant did receive threats from MB and his followers but was of the view that their motive was more likely to put pressure on him to withdraw his family’s court case rather than for political reason, but the facts that his mother and brother who were also the claimants in the court case for compensation have not been threatened or targeted by MB or his followers and are still living safely in India undermined the applicant’s credibility as to his claim, and concluded that even if he had indeed been threatened as asserted, it was not persuaded that he would not receive reasonable or adequate protection from the authorities in India or that he cannot relocate to other area such as Delhi to avoid the danger that he claims to fear.

12.  On 13 December 2016 the Director on his own initiative by letter invited the applicant 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”), and in the absence of any response from him proceeded to consider his claim under BOR 2 risk, and by a Notice of Further Decision dated 30 December 2016 again rejected all his claim including his claim under BOR 2 risk (“the Director’s 2^nd Decision”).

13.  On 10 January 2017 the applicant again filed an appeal to the Board against the Director’s 2^nd Decision, for which the Board decided that in the absence of any additional supporting evidence or information it was not necessary to hold another hearing, and on 4 January 2018 found that the applicant has failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including his right to life under BOR 2 risk being violated and dismissed his appeal (“the Board’s 2^nd Decision”).

14.  On 10 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s 1^st Decision (of which he specifically stated as the one dated 23 June 2014) and the Board’s 2^nd Decision, 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;

(2) lack of legal representation/language assistance for his claim under BOR 2 risk before the Director when he was not provided with any supplementary screening interviews that he was unable to submit additional facts in support of his claim under BOR 2 risk; and

(3) lack of fair hearing for failing to hold a hearing for his appeal on the ground of no additional facts submitted by him to the Director for his claim under BOR 2 risk as he was unable to do so without legal assistance.   

15.  The applicant was however of course way out of time with his application regarding the Director’s 1^st Decision as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that such application for leave to apply for judicial review 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.

16.  Here with the last date for the applicant to file his Form 86 for judicial review of the Director’s 1^st Decision fell on 23 September 2014, there was a delay of more than three years for which the applicant has never provided any explanation, and I am unable to see in the circumstances any good reason for extending time for his application, and given the fact that his complaints in those grounds of his as noted above essentially concern his claim under BOR 2 risk which the Director only dealt with in his 2^nd Decision, and as held in Re Moshsin Ali [2018] HKCA 549, as the Board’s Decision had overtaken the Director’s Decision, I would only focus on the Board’s Decision in the application for judicial review in my consideration of his grounds.

17.  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.

18.  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 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.

19.  As for his complaint under ground (2) of not being given legal or language assistance in dealing with his claim under BOR 2 risk before the Director, again the same principles and reasons apply as in his ground (1) above, and that if indeed he had additional facts or representation regarding his claim under BOR 2 risk which he had wanted to submit to the Director, he could have done so in his subsequent appeal before the Board but he never did. Even in his application now before me at his oral hearing when the only additional fact that he did produce was that he has a medical problem which he was said to have made arrangement with the Hospital Authority in Hong Kong for treatment or consultation and for which he would like to be given further time in Hong Kong which has of course nothing to do with any of the basis for his non-refoulement claim.

20.  Regarding his complaint under ground (3) of not being given an oral hearing before the Board regarding his claim under BOR 2 risk, as explained by the adjudicator in the decision that given the absence of any additional facts or representation from the applicant regarding his claim under BOR 2 risk, the adjudicator found it unnecessary to hold a further hearing before rejecting such claim based on the evidence available to the Board, and of which I agree that the Board was entitled to do in the circumstances and I do not find anything amiss arising from the absence of any further hearing being provided to the applicant and also for the same reasons given in paragraph 19 above.

21.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  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.

23.  For these reasons 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