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

HCAL 897/2017

[2018] HKCFI 1566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 897 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 the Applicant being absent;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The applicant is a 25-year-old national of India who arrived in Hong Kong on 29 March 2014 with permission to remain as a visitor up to 12 April 2014, but he did not depart and instead overstayed until 4 May 2014 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on 6 May 2014 on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Makhanpur, Bishnah District, Jammu, State Jammu and Kashmir, India where he used to live with his parents and a younger brother.  After leaving school he first worked in Bishnah District and then in 2014 as a salesman in New Delhi.

3.  In 2013 his grandfather distributed part of his farm land in the village with three lots to the applicant’s father and two lots to his uncle while keeping the remaining four lots to himself, and as his father’s health condition was not good, he therefore transferred his share to the applicant.  Several months later the applicant’s grandfather decided to give his remaining three lots of the farm land to the applicant as the financial condition of his family was not sound, whereas his uncle had a successful garment business and was a wealthy and influential man in the village. 

4.  However, when his uncle heard of the grandfather’s decision, he was unhappy and demanded that the applicant’s father re-distributed the land equally with him, and when the applicant’s father refused, his uncle threatened that he would get his share in his own way.  Then a few months later the applicant was stopped on the street by several men who claimed to be sent by his uncle to demand that he shared his land with his uncle, and when he told them that it was out of his hand as it was his grandfather’s decision, the men turned violent by punching and kicking him until they were stopped by passers-by, but before they left they threatened to kill the applicant if he still refused to share his land with his uncle.

5.  After the incident the applicant reported the matter to the police who then invited his uncle to the station for investigation, and when his uncle denied to have anything to do with the attack, the police told the applicant that they would have to carry out further investigation.

6.  One month thereafter the applicant’s uncle came to his home and demanded that he gave him his land, and when the applicant said it was up to his grandfather to decide, his uncle turned violent by hitting him with a wooden stick all over the body until the neighbours intervened, and before he left his uncle warned that he would kill the applicant next time when he saw him.

7.  After the applicant was taken to the hospital for treatment, his parents became concerned for his safety and suggested that he took shelter at his aunt’s place in Burajtanda Village, but when his uncle found out about it and threatened his aunt as well, the applicant therefore left for New Delhi where he found a job as a salesman and later accompanied his employer on his business trip to Hong Kong on 29 March 2014.  However, when he was told by his parents that his uncle was still looking for him all over the place, and suggested that for his own safety he should not return to India, the applicant decided to remain in Hong Kong and subsequently raised his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) on 19 September 2015 with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 7 January 2016 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 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”).

9.  In his decision the Director found on the facts of the applicant’s case that his uncle’s intention was solely to intimidate him into acceding to his demand over the farm land and not to harm or kill him which would not achieve his purpose as indicated by the low intensity and frequency of threats from him in the past, that the dispute is a private and personal matter in his family without any involvement of the state or the police and therefore 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 kilometer that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas away from his home district such as Mumbai where he can safely live and work free of any threats from his uncle.

10.  By a Notice of Further Decision dated 28 November 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation 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”).

11.  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, for which he filed his appeal on 19 January 2016, and attended an oral hearing on 25 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the applicant’s account of his land dispute with his uncle riddled with inconsistencies and exaggerations and uncorroborated with any other reliable evidence, but that even if such threats from his uncle were real and still persisted, that state and police protection as well as reasonable internal relocation alternatives would be available to the applicant upon his return to India, and hence his non-refoulement claim failed on all applicable grounds.

13.  On 16 November 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 ground for his intended challenge:

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

(2)     lack of language assistance in providing him with a translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3)     lack of fair hearing to assist him in dealing with submitting additional facts in support of his claim relevant to BOR 2 risk;

(4)     lack of fair hearing in not requiring the attendance of the Director at his oral hearing before the Board.

14.  The applicant’s leave application was by then of course late by almost two months as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an 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, which means that in the present case on or before 23 September 2017, but for which the applicant has not made any application for extension of time, nor did he provide any reason or explanation for his delay.

15.  As a matter of fact, it was not possible to enquire of him either as he did not attend the oral hearing for his leave application, as all the court’s notices of the hearing sent to him at his last known address had been returned marked with the words of “no such person, already moved out”, while attempts by the court’s clerks to contact him by his latest mobile phone number were also unanswered.  In the circumstances I decided to proceed to deal with his application on papers without scheduling for another oral hearing.  

16.  As noted the applicant’s leave application was late by almost two months, and in considering whether there is any good reason for extending time to the applicant, and in the absence of any explanation from him for the delay, the only significant matter to be taken into account in this case is to see if there is any merit in his intended challenge against the administrative decisions of the Director and the Board: see Re Thomas Lai [2014] 6 HKC 1, and endorsed by the Court of Appeal in AW v Director of Immigration and Anor CACV 63/2015.

17.  For the applicant’s complaint in ground (1) of not being given 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: 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.

18.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to give evidence and make representation in his appeal to the Board with the assistance of interpreter without any difficulty.  I do not see anything amiss arising from the lack of legal representation in his appeal process.

19.  As for his ground (2) in which he complains of not being given a translation of his NCF so that he could find out whether the interpreter had properly translated the basis of his claim, it is plain that his NCF was completed on his instructions with legal representation, and in the absence of any particulars or specifics to show that the basis of his claim had indeed been wrongly or inaccurately interpreted to the Board, this ground of his is simply speculative and without merits.

20.  Regarding his complaint in ground (3) of not being given any legal assistance to submit additional facts relevant to his claim under BOR 2 risk, which may explain why he did not do so after receiving the invitation letter from the Director, but if indeed he had any additional facts to submit relevant to BOR 2 risk, he could still have been able to do so during his appeal to the Board or at the oral hearing before the adjudicator, but he never did nor raised any issue over BOR 2 risk.  In the circumstances there is simply no merits in this ground of the applicant.

21.  As for his last ground over the non-attendance of the Director at his appeal hearing, I do not see any rationale for insisting the Director’s presence as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is no merit in this ground either.

22.  In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review even if it had been filed within time, and in the absence of any good reason for extending time for him to do so, I accordingly dismiss 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