BALKAR SINGH v. THE DIRECTOR OF IMMIGRATION BOARD AND ANOTHER

HCAL 370/2018

[2020] HKCFI 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 370 of 2018

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 granted.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of India who arrived in Hong Kong on 21 February 2012 but when he was refused to enter 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 people of rival political party Congress Party (“CP”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bhattike, Amritsar, Punjab, India. After leaving school he worked as a farmer, got married and raised a family of two children, andfollowed in his father’s footsteps to become a member of the political party Shiromani Akali Dal (“SAD”) responsible for undertaking propaganda activities for the party.

3.  In January 2012 SAD won the general election in District Punjab, and during the party’s celebration in the Applicant’s home village, some CP supporters confronted the Applicant and his fellow supporters which then led to a mass fight between the supporters of the two rival parties during which the Applicant struck a CP supporter in the head with a hockey stick that the men fell on the ground and lost consciousness, and the Applicant then fled to Jalandhar to hide in his uncle’s place.

4.  Later when he heard that the CP supporter whom he struck on the head had subsequently died from his injuries in the hospital, the Applicant became fearful of being pursued by the CP people to take revenge against him, he therefore fled to New Delhi, and on 16February 2012 he departed for Thailand and then to Macau, and from there he travelled to Hong Kong, but when he was refused entry, he raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 25 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 26 January 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the CP people upon his return to India due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police 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 populationof 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 adult with work experience to move to other part of India away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for those CP people to locate him.

7.  On 6 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 5 February 2018 before the Board but during which he confirmed his claim as set out previously to the Director but refused to give any further evidence or to answer any question raised of his claim by the adjudicator for the Board despite being invited and advised to do so.  On 5 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board expressed concerns about several aspects or issues over the Applicant’s evidence upon which she intended to discuss with the Applicant, but given his refusal to provide oral evidence or to answer questions during the hearing, the Board found that it was unable in the circumstances to be satisfied that the Applicant left India and cannot return for the reasons that he claimed or that he had been involved in an incidentwhereby he was responsible for the death of a member of CP, and was therefore not satisfied that the Applicant will be harmed by the CP people or the police or the authorities upon his return to India that his claim for non-refoulement protection therefore failed on all applicable grounds.

9.  On 7 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form other than a mere regurgitation of his claim that he faced dangerous problems and torture in his home country, and that the Director and the Board wrongly reached their decisions in rejecting his non-refoulement claim which were not reasonable orfair as required by the Wednesbury test but without providing any particulars or elaboration as to why or how they were so.

10.  Nevertheless, the Court will adopt an enhanced standard in scrutinizing the decision of the Board in view of the seriousness of the issues at hand, of which I shall proceed to consider whether indeed the Board’s reasons in rejecting the Applicant’s claim and dismissing his appeal were unfair or unreasonable as claimed by the Applicant.

11.  In its decision the Board dismissed the appeal against the Applicant having regard to all the applicable grounds by first explaining why an oral hearing was arranged for the Applicant to attend for his appeal as follows:

“ 23. The Appellant attended a hearing on 5 February 2018. After the relevant grounds were explained to him, the Appellant stated that he does not wish to give evidence to the Board, stating that all of his claims have previously been presented. He also stated that he has been in immigration detention for 10 to 11 months and he is unable to remember everything that happened to him.

24.   The Appellant was advised that he had been invited to attend the hearing because I had a number of questions I wished to ask him.  He was advised that if he is unwilling to answer questions I will have no alternative but to make my decision on the basis of the evidence before me and this willmean that the decision will be unfavourable to him.  The Appellant was asked whether he wished to have a break in the hearing to reconsider his position. He indicated that he did not wish to do so and he understood that the decision would be negative.”

12.  When the Applicant refused to give oral evidence or to answer questions, and in the absence thereof, the Board proceeded to dismiss his appeal for the following reasons:

“ 26. The information before the Board confirms that there have at times been violent clashes between members of the Akali Dal and Congress parties in Punjab, particularly during election periods. However, I nevertheless had concerns about several aspects of the Appellant’s evidence and I decided to hold an oral hearing to discuss various issues with the Appellant. These included, for example:

i. The general credibility of the Appellant’s claim;

ii. The nature and extent of his involvement in the Akali Dal party in Amritsar;

iii. The length of time since the incident occurred;

iv. Whether he had any documentary evidence to support his claim; and

v. The issue of relocation.

27. Whilst noting the difficulties claimants in this area can have in giving evidence in the context of a hearing, the exercise in determining whether an Appellant’s claims are valid is one of joint endeavor and the onus is on the Appellant to make out his case. His refusal to provide oral evidence and to answer questions during the hearing means that I have effectively been denied the ability to test the veracity of his claims. I cannot, in such circumstances,be satisfied that the Appellant left India and cannot return for the reasons he claims.

28. Without further evidence from the Appellant,I am therefore unable to be satisfied that he was involved in an incident whereby he was responsible for the death of a person who was a member of the Congress party or that he left India for any of the reasons he has claimed.  I am not, therefore satisfied that the Appellant will be harmed by members of the Congress party, the police or the authorities in India.  He has not claimed to fear harm on any other basis.  My consideration of these findings against each of the applicable grounds is discussed below.”

13.  It is on this basis that the Board found that it was not satisfied that the Applicant would be at risk of any harm upon his return to India, and that he was not entitled to non- refoulement protection in Hong Kong on any of the applicable grounds.

14.  It therefore seems clear to me that the Board essentially decided the appeal against the Applicant because it was unable to determine his credibility due to his refusal to give oral evidence or to answer questions raised of his claim during his appeal hearing, and in the absence thereof that it was unable to determine whether there was a real risk or that there were substantial grounds for believing that the Applicant would be at risk of the harm he claimed to fear if he were to return to India.

15.  This is however notwithstanding the fact that the Board had in considering the appeal all the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision) that it would have taken into account in assessing the Applicant’s claim against allthe applicable grounds notwithstanding the absence of his oral evidence, but that there does not appear to be any analysis or elaboration as to why the Board was unable to determine the credibility of the claim or whether the claimed fear of harm was well-founded based on those materials in the hearing bundle before the Board which led to the dismissal of the appeal.

16.  In Re Hidayah [2018] HKCA 595, CACV 160/2018, 14 September 2018, where the Board similarly found that it was unable to determine the applicant’s credibility due toher failure to attend the hearing, the Court of Appeal granted leave for her to apply for judicial review on the arguable ground that the Board had failed to give, or had given insufficient reasons for dismissing her appeal, as Hon Chu JA in giving judgment of the Court stated ([15]):

“ The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whetherthere was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

17.  In the premises and for the reasons given above, I am of the view that it is reasonablyarguable that the Board had failed to give or had given insufficient reasons for dismissing the Applicant’s appeal, having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.  Accordingly,I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the above ground, and direct that he shall file an originating summons within 14 days of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

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