ASHWANI KUMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 866/2017

[2018] HKCFI 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 866 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 32-year-old national of India who entered Hong Kong illegally on 30 June 2014 and was arrested by the police on 8 July 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on 10 July 2014 on the basis that if he returned to India he would be harmed or killed by a group of 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 Village Bhou, Jammu and Kashmir, India where his mother and sister still live.  After leaving school he helped in his family’s farmingin the village, and subsequently became a supporter of the Indian National Congress Party (“INC”) attending rallies and assisting in their election campaigns.

3.  One day during the 2013 election of the village head between the candidates of INC and BJP, the applicant and his fellow INC supporters were threatened by a group of 20 – 25 BJP supporters to quit INC and to join their party but the applicant was able to flee from the scene.  However, thereafter every time when he ran into the same group of BJP supporters, they would slap and punch him with threats to kill him if he still refused to join their party, and when the assaults became more frequent and when the police were unable to follow up with their investigation, the applicant took shelter at his relatives’ home in Purana Pind, but when he was told by his family that the group of BJP supporters had come looking for him and threatened his family when they were unable to find him at home, the applicant decided to leave India for his own safety when he departed on 15 June 2014 for China, and from there he sneaked into Hong Kong on 30 June 2014 where he subsequently raised his non-refoulement claim, and for which he later completed his Non-refoulement Claim Form (“NCF”) on 22 January 2016 with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 23 March 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”).

5.  In his decision the Director found on the facts of the applicant’s case no substantialgrounds for believing that the BJP supporters would harm or kill him or that his perceived fear is real or foreseeable, that in the absence of any involvement of the state or police in their threats that state protection and police 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 of1.2 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 areas away from his home village such as New Delhi, Mumbai, Kolkata or Bangalore where he can safely live and work without any fear of threats from the BJP supporters.  

6.  On 1 April 2016 the applicant filed his notice of appeal to the Torture Claim Appeal Board (“the Board”) against the Director’s decision, but failed to attend the oral hearing scheduled on 18 April 2017 without any explanation, and as a result the Board proceeded to consider his appeal on papers without scheduling for another hearing.  On 14 July 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board expressed significant concerns regarding the applicant’s credibility and reliability as to his account of threats in India such as a group of 20 – 25 BJP supporters would track him down wherever he may be in India in order to kill him for refusing to join their party when he was one mere supporter with no official post in INC, all of which were left unanswered as the applicant failed to attend the hearing without any explanation, and that in any event with the availability of both state protection and reasonable internal relocation alternatives to the applicant upon his return to India, it therefore found no reason to afford him non-refoulement protection in the circumstances.

8.  By a Notice of Further Decision dated 26 September 2017 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”).

9.  On 10 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 grounds for his intended challenge:

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

(2)  lack of language assistance for not being provided a translation of his NCF so that he could find out whether the interpreter had properly translated the basis of his claim;

(3)  lack of communication among authorities in assisting him to deal with and/or submit additional facts relevant to his claim under BOR 2 risk; and

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

10.  For his 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 187nor the judgment of FB v Director of ImmigrationHCAL 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.

11.  The applicant already had the benefit of legal representation in presenting his case to the Director, and while he was given the opportunity to make further representation to the Board at an oral hearing of his appeal, he did not attend nor provided any explanation for his absence.  I do not find anything miss arising from the lack of legal representation in his appeal process.

12.  As for his complaint in ground (2) 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 instruction and with legal representation, and in the absence of any particulars to show that the basis of his claim had indeed been wrongly or inaccurately interpreted or translated, I find this ground of the applicant simply speculative and without merit.

13.  Regarding his complaint in ground (3) of no legal assistance for him to deal with the Director’s invitation to submit additional facts which may be relevant to BOR 2 risk, even up to now in his leave application including his oral hearing before me, the applicantdid not submit any additional facts relevant to BOR 2 risk, nor did he raise any such issue or request for assistance at the hearing in respect of BOR 2 risk, whilst the Director did nevertheless consider such risk which may be relevant to the applicant’s claim but found no such risk on the facts of his own case as explained in the Notice of Further Decision.  As such I do not find any merit in this complaint of the applicant.

14.  As for his ground (4) over the non-attendance of the Director at his appeal hearing before the Board, I fail to 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 do not 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 simply no merit in this ground.

15.  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.

16.  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