RE GURNISHAN SINGH

CACV 256/2018

[2018] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 256 OF 2018

(ON APPEAL FROM HCAL 240/2015)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 15 June 2018 in HCAL 240/2015 refusing leave to the applicant to apply for judicial review. The applicant is an Indian National. He tried to enter Hong Kong on 17 August 2015 and was refused permission to land. Pending repatriation to India, he lodged a non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by Harmeet Singh Sandhu (“Harmeet”), who was one of the leaders of an Indian political party, Shiromani Akali Dal Party (“SAD”), if the applicant were to return to India as the applicant was a supporter of the Indian Congress Party (“CP”) and had turned down Harmeet’s request to join the SAD.

2.  By Notice of Decision dated 16 November 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the applicant’s fear would be unlikely to materialize because of the low level of risk of harm from Harmeet and his associates against the applicant, which was indicative of a small future risk of harm upon his return to India.  The availability of state protection and the possibility of internal relocation would further lower or negate the level of risk of ill-treatment.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By further decision of 9 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 21 September 2016 and 2 November 2017, the Board dismissed the appeal on 17 November 2017. The Board found at [27] to [30] of its decision that the applicant was evasive regarding his role and participation in the CP’s election campaign.  The Board also found at [34] of its decision that the applicant’s account of events was inconsistent and contradictory and the applicant had failed to establish that he would be at risk of harm warranting non-refoulement protection.

The Judge’s decision

4.  On 4 December 2015, the applicant sought leave to apply for judicial review in HCAL 240/2015.  At that time, the applicant had not exhausted the option of appealing the Director’s decision to the Board in the two-tier screening system.  The intended judicial review was in respect of the Director’s decision only.  The applicant sought to raise three main grounds of appeal which can be summarized as follows:

(1)   The Director’s decision was unfair and unlawful for failing to place sufficient weight in his evidence of the police’s inability to help him and in the relevant COI in assessing the effectiveness of state protection in India. 

(2)   The Director failed to consider the presence of state acquiescence in his case and the concept of extended state acquiescence to the actions of non-state officials, or the existing gross and mass violation of human rights within the state of India.

(3)   The Director failed to apply high standards of fairness in considering his claim.

5.  On 15 June 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decision of the Director, the Judge gave the following reasons at [10] – [15] for his refusal to grant leave:

“10. These are all broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case or how the Director had erred in his decision, or in what way is state acquiescence or the concept of extended state acquiescence relevant to his case.

11. As held by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, if the risk of persecution or torture is a localized one, and it is not unreasonable or unsafe for the claimant to relocate to another part of the country in question, there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT, and that there may be many reasons why the risk of torture is a localized one, such as where the torturer is not the state or a “state agent”, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternatives concerned, or that meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternatives where the risk of torture is non-existent or insubstantial, and if the risk of torture is for one reason or another a localized one, one is then to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative place under consideration or whether it would be unduly harsh to expect him to do so: per Cheung CJHC at paragraphs 32 – 33 of his judgment.

12. Here the Director having found no substantial grounds to believe that any threats or acts against the applicant by HM and his SAD people were inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, then went on to assess from reliable and objective COI that internal relocation alternatives are available and reasonable to the applicant as he explained in his decision as follows:

‘26. You had reservation on the option of internal relocation in India as you believed that the current ruling party of India is BJP which is alleged to have alliance with SAD. You could be easily located by them as SAD or BJP has wide network through India.

27. According to the results of General Election 2014, out of 28 state and 7 union territories that made up of India, SAD is only a regional state party and it got only 4 seats in Punjab and no seat in other parts of India. There are many options for you to relocate to other states in India such as West Bengal where All India Trinamool Congress (‘AITC’) was the ruling party in this state. Further, as revealed by the World Facebook of US Intelligence Agency (Item 6 of Appendix), India has a population of more than 1.2 billion and a land area of more than 2.9 million square kilometers. It would be very difficult for HM or his SAD people to locate you among such a large population and in such a large country. According to you, HMand his people did not know your sister’s address and hence you could stay safely at her place. It appears that HM was not as influential and powerful as you so claimed.

28. Furthermore, it is noted that internal relocation is permissible under Indian Law. According to section 2d of the India 2014 Human Rights Report (Item 7 of Appendix), ‘The law provides for freedom of internal movement, foreign travel, emigration and repatriation, and the governmentgenerally respected these rights.’ You had stayed in Ajnala with your sister for around 7 to 8 months and with your cousin in Amritsar for around 3 months. Being an able-bodied adult of 29 years old with almost 13 years working experience as a farmer, it is not considered unduly harsh for you to relocate to other areas in India.’

13. Even putting aside the unlikelihood of HM or his SAD people still having any adverse interest in the applicant given his insignificant role in INC, the Director rightly found that the threats from HM or his SAD people was a localized one in Punjab, and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, there is therefore in my judgment clearly no justification for affording the applicant refoulement protection, and accordingly I do find any merit or basis in any of the grounds of the applicant.

14. In the premises and having proceeded to consider the Director’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in his decision, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.

15.  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.”

6.  In the Notice of Appeal filed on 21 June 2018, the applicant put forward the following grounds of appeal:

(1)   The Judge’s decision was unreasonable and unfair.

(2)   Given the lack of legal representation since the hearing before the Director in 2015, the applicant did not know how to proceed with his application for appeal to apply for judicial review, and the process was thus unfair.

(3)   The applicant disagreed with the Director’s findings in respect of COI especially in relation to internal relocation and there was a lack of proper balance and weight put in respect of the COI for and against the applicant’s case.

7.  In the skeleton submissions lodged by the applicant on 17 September 2018, he raised essentially the same grounds as those set out in the Notice of Appeal, but added a further complaint regarding lack of language assistance.

8.  We heard the appeal on 11 October 2018. 

Discussion

9.  Having considered the submissions of the applicant in light of the material before us, we found the Judge’s observations to be justified. 

10.  Ground 1 lacks substance and is devoid of merit.  The applicant has failed to specify any particular respects in which the Judge’s decision was susceptible to challenge.  In any event, we agree with the Judge’s finding that the Director’s decision did not involve any error of law or procedural unfairness, nor any failure in applying the high standard of fairness in his consideration and assessment of the applicant’s claim.   In our view, the applicant has failed to show that the Judge committed any error in arriving at this conclusion. 

11.  As for Ground 2, this Court has emphasised repeatedly that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  There is therefore no merit in this ground.

12.  Ground 3 is misconceived and devoid of merits.  The applicant complained that the Director placed undue weight on COI as to the possibility of internal relocation in India.  We agree with the Judge’s findings at [12] of the CALL-1 Form that the Director had fairly and properly assessed the objective COI in arriving at the conclusion that internal relocation alternatives were available and reasonable to the applicant.  Accordingly, we do not find any basis or merit in ground (3) of the applicant.

13.  Nor is there any merit in respect of the complaint based on the lack of language assistance.  The applicant did not provide any particulars about any misunderstanding of court procedures or mis-translation of his material.  The high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired.  It is further noted that all court documents were written in English, indicating either that the applicant is familiar with the English language or that he had the means and access to such language assistance as he needed. 

14.  Having read the materials put before us, we are of the view that the findings of the Board and the Directors, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.