PARAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL541/2017

[2018] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 541 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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong on 20 October 2005 and was permitted to remain for seven days but overstayed.  He was arrested by the police on 20 February 2007 and not until 9 March 2009 did he lodge a non-refoulement protection claim.  His screening history was long, tortuous and convoluted; the Director of Immigration (“the Director”) eventually rejected the applicant’s claim on 3 July 2015 and 25 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 11 August 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing which was set down for 3 January 2018.  The basis of the applicant’s claim was that he would be harmed or killed by Pala Singh, a member of the village committee and other villagers at home if he returned there because of a religious conflict that he had with them before he left.  The Director set out the applicant’s evidence and claim in detail in his decision therefore, I do not intend to repeat it here.

3.  The applicant was born in 1985 in the Punjab, had 10 years of education, worked as a farmer, is single and catholic.  The majority of the applicant’s villagers were Sikhs whilst there were four to five Christian families.  A few months before the applicant left for Hong Kong he wanted to get a job and needed a caste certificate so he approached the village head.  The head turned him down because he said his name belongs to a Sikh but he was Christian so it was a false name.  The applicant then said if he did not sign the certificate he would complain against him.  The village head then told Pala Singh and Dilbag Singh to assault the applicant.  They beat him for about 10 minutes before passersby stopped them.

4.  The applicant tried to report this assault to the police but could not pay the Rs. 5000 bribe they asked for.  About five days after the police report, 20 odd villagers broke into the applicant’s home and started beating the family.  Again the police would not investigate this attack on the entire family without a Rs. 20,000 bribe but also they did not want to take action against the whole Sikh community.  The family started to receive threatening phone calls because they reported the attack to the police.  After this the applicant and his family moved to different places in and around the village including the Sikh temple for about a month without being detected by those men.  The applicant decided that he could not hide forever and made arrangements to leave India.  The applicant went to New Delhi, stay there for two days and left for Hong Kong.  He had no contact with his family after he left his village.

5.  The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  The adjudicator did arrange for an oral appeal hearing and a notice of hearing was sent to the applicant’s last known address, that address provided by him in his notice of appeal/petition.  The applicant failed to appear on the hearing date.  Attempts to contact the applicant on the mobile phone number provided by him in the same notice of appeal/petition were unsuccessful.  No explanation was received by the TCAB to explain the nonappearance of the applicant.

7.  Pursuant to Section 15 of Schedule 1A of the Immigration Ordinance, a notice was sent to the applicant by letter which stated that unless within seven days of that notice the applicant provided a satisfactory written explanation of his failure to attend the appeal hearing together with any supporting documentary evidence, the TCAB would determine his appeal in his absence.  No explanation was received by the TCAB within seven days and the TCAB decided to determine the appeal/petition in his absence.

8.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s background and Immigration history.  He correctly reiterated that it was incumbent upon the applicant to satisfy the TCAB that there is a real risk or chance, or that there are substantial grounds for believing, that he would suffer the harm he claims to fear if he were to return to India.  Because of his failure to attend the appeal hearing, the adjudicator was unable to determine the credibility of his assertions.  The adjudicator was unable to determine whether there is a real risk or there are substantial grounds for believing that he would suffer the harm he claims to fear.  The adjudicator could not find the applicant had made out a case for non-refoulement protection and confirmed the decisions of the Director.

Leave to apply for judicial review

9.  The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  There is only one ground in his affirmation directed at the Director; he rejecting the applicant’s BOR 2 claim and failed to give reasons for that rejection.  I will refer to this ground later but it has no merit.

10.  I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB would have treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes he says the Director made in his notice of appeal to the TCAB.

11.  The applicant failed to attend the appeal hearing and it is not a ground of this application that the decision to determine that appeal without a hearing was unfair or a procedural irregularity.  This would mean the applicant admits it was his own mistake that he failed to attend the appeal.  To now allow him to go back to seek leave to judicial review both decisions cannot be the right course of action to take under such circumstances; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

12.  The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;

(2) the lack of language assistance given to him during the appeal process; and

(3) insufficient reason given for rejection of BOR 2 risk by the Director.

13.  The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

14.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

15.  The applicant’s second ground is also without merit.  He complains of a lack of language assistance when there are no particulars in the ground nor no complaint registered in the adjudicator’s decision indicating that the applicant had made this complaint in his notice of appeal.  Moreover, this application and affirmation were in English made by this applicant with an apparent lack of language assistance from the Hong Kong government.

16.  The applicant’s third ground although it is a complaint against the Director, I will still deal with it.  He suggests no reasons were given for rejecting the BOR 2 risk claim.  The notice clearly refers to the Director’s findings in his previous decision of 25 October 2016 and applies it to Article 2.  He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision.  In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk.  Even if this was an application applicable to the Director, this ground would have no merit.

17.  As I have said above, the adjudicator determined the appeal/petition without a hearing and the applicant has no complaint about the decision.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application, including that decision even though the applicant has made no complaint about it.  I find the adjudicator’s decision to proceed without an oral hearing reasonable and justified.

18.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my view, the same applies to the decisions of the Director.

19.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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