PRABHDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 212/2017

[2018] HKCFI 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 212 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 granted.

Observations for the Applicant:

1.  The applicant is an Indian national who flew into Hong Kong on 29 March 2016 when he was merely 17-year old, and when he was refused permission to land, he lodged a non-refoulement claim for protection with the Immigration Department on the same day on the ground that he feared he would be harmed or killed by BS, a member of his rival political group who is also said to be a cabinet minister in Punjab, India.

2.  His case is that he started to be a supporter of the Congress Party also known as Indian National Congress since December 2013 actively participating in its campaign including gathering people to vote for the party, but there were several incidents which took place between December 2015 and February 2016 when he was threatened by BS and his supporters of the rival Akali Dal Party to stop campaigning for his party in his home district in District Amritsar, Punjab, and that in the last incident which occurred in February 2016 he was kidnapped by BS’s supporters and had had a gun pointed to his head by BS, and after he made his escape to the Kathunangal Police Station, instead of offering him protection the police on BS’s instruction tried to detain him, and after he was able to run away to hide in his uncle’s place in another village, he heard BS was still looking for him, and so he took his family’s advice to leave India to come to Hong Kong to seek non-refoulement protection.

3.  On 22 June 2016 the Director of Immigration rejected his claim on all applicable grounds, and on 30 June 2016 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) which scheduled an oral hearing on 24 February 2017 at 10 am at Two Chinachem Exchange Square, North Point, of which he was notified by post to his address at Tuen Mun and was reminded again to attend the hearing by the staff of the Board by telephone on the day before.  When he failed to appear at the appointed time, he was again contacted by the staff who was told by his friend that he was on his way on a bus from Tuen Mun. Eventually he turned up at 11:50 am but instead at the office of the Board in the Immigration Tower in Wanchai where he produced a note stating that he did not know the address for the hearing, and as a result the oral hearing scheduled before the Adjudicator at North Point was cancelled.    

4.  It appears that no oral hearing was ever re-scheduled and the applicant’s appeal was dismissed by the Board by a decision dated 4 May 2017 in which the Adjudicator said this about the applicant’s failure to attend that oral hearing on 24 February 2017:

“ 4.1 The Applicant turned up to the office of the Appeal Board at 11:50 am, which was almost 2 hours after the commencement time of the Hearing. He produced a short note which stated that he was not able to attend the Hearing as he ‘did not know the address’. This was not a reasonable excuse because he had been informed of the address in the Notice of Hearing as well as by the staff of the Appeal Board a day prior to the hearing by telephone. Further and in any event, if he genuinely did not know the address nor the location of the venue, he nevertheless did not contact the Appeal Board nor even the Immigration Department to enquire, which showed that he was neither genuine nor intending to attend the Hearing but was trying to thwart same.

4.2    As the Appellant has now been in Hong Kong for a year, with his claim truly ‘long in the tooth’, but more importantly the basis of the claim is abundantly clear, it is not proper to delay the case by waiting for him to say when it is that he is ready for his case to be determined.”

5.  I should pause here to point out that firstly, while it may well be irritating or annoying to have to wait for a party to turn up for something as serious and important as a court hearing or formal enquiry, and I wholly agree with the Adjudicator that it is the duty of the applicant to find his way to attend punctually such an important occasion when he was afforded the opportunity to make out his claim to the Board, but one must also bear in mind that the subject was an 18-year old young man who had then been in Hong Kong for less than a year at that time and who obviously spoke no local dialect or even English, and lived far away in Tuen Mun, and that there was simply no evidence before the Adjudicator save for some simple telephone conversation between the Board’s staff and the applicant’s friend for the Adjudicator to assume that the applicant was in the circumstances “neither genuine nor intending to attend the Hearing but was trying to thwart same” when the fact is that the applicant did turn up albeit at the office of the Board where he first lodged his appeal and with a note stating that he did not know the address of the hearing, which begs the obvious question that if he indeed intended to thwart the hearing, why bother to take the long journey from Tuen Mun to the Immigration Tower in Wanchai?

6.  Secondly, there is nothing to suggest that either the applicant or the Adjudicator would not be able to attend another oral hearing within a fairly short time, and while the Adjudicator was correct that it would not be proper to delay the case, it is noted that his decision was not delivered until some 10 weeks later on 4 May 2017.     

7.  In that decision the Adjudicator stated that in assessing the credibility and liability of the applicant’s claim, he found it relevant to raise numerous questions over the various incidents alleged by the applicant in his Non-refoulement Claim Form of 9 May 2016 which the Adjudicator described as vague and unconvincing, and said this in his decision:

“ 14. The above concerns are significant regarding credibility and reliability, but as the Appellant failed to attend the hearing these were left totally unexplained.

15. Why the Appellant left India, why he chose Hong Kong, why the obvious method to avoid BS was to stop campaigning for the CP (as he shows from his submissions that he valued his life and limb much more than to further his CP ideology), and an obvious and cheaper way to avoid BS was to live elsewhere in India (more on this below), and why in the absence of having suffered any serious injury, yet he would travel 3,700 km to far-away Hong Kong, the answers to all these matters he himself would naturally know, but as the burden of proof is on a claimant, even though I make no finding on credibility because the Appellant did not speak to me, but if on the available materials an outsider should find him unreliable the outsider will dismiss the claim.”     

8.  Indeed if these were the necessary or relevant questions which should be put to the applicant at an oral hearing for him to clarify so that his credibility could be properly assessed by the Adjudicator in his determination of his claim, but were not because there was no such hearing for the reasons set out in his decision referred to above, one is entitled to wonder whether it is entirely fair in the circumstances for the Adjudicator to say that he was unable to make any finding on credibility because the applicant did not speak to him?

9.  However, it seems that was exactly what he may have done when he went on to state in his decision:

“ 16. I am aware that even if a large part of the Applicant’s story is not believed, he may still face harm on return, but he has failed to discharge the burden of proof despite the standard required being low. His story is woefully vague and I can place no credence in same. Hence there is nothing to support the claim.”

10.  To be fair the Adjudicator did go on to state in his decision that he would nevertheless consider the applicant’s claim on his own alleged set of facts, and as noted above it was on 4 May 2017 when he determined that the applicant had failed to establish a case of non-refoulement whether under risks of Torture or BOR 3 or BOR 2 or Persecution, and therefore dismissed his appeal.

11.  On 18 May 2017 the applicant filed his application for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he complained about not given the chance to submit additional facts relevant to his BOR 2 Risk, and that there are some errors in law in the Board’s consideration of the COI relevant to the issue over internal relocation but without giving any specifics, and while he did not appear to have made any complain regarding that oral hearing, he did mention that there was supposed to be one on 24 February 2017.     

12.  As stated clearly by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, while there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whetherthere has been an oral hearing before, the interest at stake and the importance of the decision in terms of its outcome and consequence, the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: per Cheung CJHC in paragraph 26 of his judgment for the court. 

13.  In applying this question in the context of torture claims, His Lordship then stated in paragraph 40:

“ … an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standard of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.”

14.  And in paragraph 52 His Lordship also stated:

“ It cannot be overemphasised that a desire to save time, trouble and expense cannot be a relevant consideration to not holding an oral hearing. That said, it does not follow that an oral hearing, if indicated, has to be lengthy. All that is required is a reasonable opportunity to be heard, and in terms of time, an oral hearing of a reasonable duration.”

15.  While it is not clear to me whether that oral hearing on 24 February 2017 was called for at the applicant’s request or at the Board’s initiative, the fact that it was so scheduled and with so many questions raised by the Adjudicator about the applicant’s case as he did in his decision but which he said he did not get their answers because the applicant did not speak to him, it seems to me that in the circumstances and with the required high standard of fairness, the applicant does have a reasonably arguable ground based on procedural unfairness to apply for judicial review of the Board’s decision for not affording him another oral hearing before dismissing his claim, and I therefore grant him leave to apply for judicial review accordingly with both the Director and the Board as Respondents. Hearing will be fixed after applicant has filed the Originating Summon.

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