VIKAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 572/2017

[2018] HKCFI 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 572 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:

1.  The applicant is a 31-year-old national of India who arrived in Hong Kong on 2 April 2011 with permission to remain as a visitor until 16 April 2011 when he did not depart and instead overstayed until he was arrested by the police on 22 July 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim with the Department on 25 July 2012 on the basis that if he returned to India he would be harmed or killed for having witnessed a murder case.  He has since been released on recognizance pending determination of his claim.

2.  The applicant was born and raised in Jandiala Guru, Amritsar, Punjab, India.  After leaving school he worked as a customer service officer in a company in India.  One day in May 2010 as he was passing through a remote area he saw a man whom he recognized as ST stabbed another man known to him as GP to death.  He therefore ran away to inform GP’s family of what he saw, and when ST found out what the applicant had witnessed, he threatened to kill him if he dared to be a witness to the police investigation, while the family of GP also made the same threat to him if he refused to be a witness.  These threats from both sides later escalated to physical violence on several occasions when he was punched on the streets and at his home, and given the fact that the families of both sides were wealthy and well-connected with politicians in his hometown, the applicant decided to leave India for his own safety which he did on 3 February 2011, and after spending several weeks in various places such as Bangkok, Malaysia and Cambodia, he eventually arrived in Hong Kong where he overstayed and subsequently lodged his torture claim with the Immigration Department.  

3.  By a Notice of Decision dated 10 March 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

4.  In his decision the Director found that even on the applicant’s own case state or police protection would be available to him upon his return to India whether or not he is to be a witness in that murder case in the absence of any reliable evidence that the state or police were involved in the threats levelled at him, and that even if those threats somehow are to persist, objective Country of Origin Information (“COI”) show that internal relocation alternatives are available to the applicant to return to India with such a large population of 1.2 billion people spread across a vast territory that it would not be unduly harsh for him to live and work safely in large cities such as Delhi or Mumbai free of any threats from either sides. 

5.  On 20 March 2015 the applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 11 February 2016 but he chose to remain silent during the entire hearing without giving any evidence or answering any questions put to him by the adjudicator.  On 1 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

6.  In its decision the Board raised various questions about the applicant’s account of the threats against him but were not answered as he chose to remain silent at the oral hearing, but even on the basis of his own case the Board agreed with the Director that COI show availability of reasonable state protection and internal relocation for the applicant to safely return and reside in India other than his home district, and therefore concluded that his claim has failed on all the applicable grounds.  

7.  On 17 January 2017 the Director by letter invited the applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection and including in particular any absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and upon receiving and considering further submission and additional materials from the applicant relevant to BOR 2 risk specifically of further threats and disturbances by ST to his family in India, the Director found that the applicant has failed to establish his case under BOR 2 risk and again rejected his claim.

8.  On 20 February 2017 the applicant appealed to the Board against that decision of the Director on the grounds of selective reliance on COI, failing to rely on the new facts submitted by him, and that “India is the most violent country at this time”.  On 29 August 2017 his appeal was again dismissed by the Board without any oral hearing.

9.  On 1 September 2017 the applicant filed his Form 86 for leave to apply for judicial review of that decision of the Board in which he stated the following grounds:

(1) that the Board had unlawfully fettered its discretion by refusing his appeal on the ground that it did not satisfy the requirement;

(2) that the adjudicator acted unfair procedurally in dealing with his appeal;

(3) that the Board’s decision in refusing his appeal was unreasonable or irrational in the public law sense resulting in procedural error or unfairness; and

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant.

10.  Whilst these grounds all appear just broad and vague statements without any particulars or specifics, the applicant did in his Form 86 and his supporting affirmation of the same date set out essentially his basis for these grounds in his these complaints:

(1) that he was not given any oral hearing in his appeal before the Board and hence was deprived of an opportunity to put forward his oral or written submission relevant to BOR 2 risk; and

(2) that the Board had significantly relied on source of news not officially recognized or outdated or simply hearsay which led to its groundless speculations that it would be safe for him to return to India.  

11.  For the applicant’s complaint of not being given an oral hearing before the Board regarding his claim under BOR 2 risk, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26. 

12.  It is clear that the applicant did have an oral hearing in his first appeal before the Board during which he however chose to remain silent, and while he did in response to the Director’s invitation submit additional materials and representation regarding his claim under BOR 2 risk, of which both the Director and the Board had taken into consideration and were entitled to find, as they did, that they were hearsay and did not add anything legally or substantively to what he had previously presented to them, and for which the Board did explain why an oral hearing in the circumstances was not necessary in its decision:   

“ 7. The Appellant has been given the opportunity by the Director to provide further materials, which he has provided, and has ventilated his case in the NOA/P. Whether ‘India is the most violent country at this time’ I do not need to address as to whether it is a true or speculated or false statement to make. But his case is abundantly clear. I can see no need or justification to organize yet another oral hearing to canvas the same case as has been heard and disposed of previously. As the Court of Appeal has said, ‘the time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently’: AW v Director of Immigration CACV 63/2015. The issue under BOR 2 Risk can more than adequately be considered and dealt with on paper.”

13.  Even now at the stage of his leave application for judicial review of that decision of the Board including an oral hearing before me, the applicant still did not state what further representation or submission that he would have put forward to the Board had he been given the oral hearing.  In the circumstances I do not find anything amiss arising from the Board for not providing another oral hearing to the applicant, nor do I find any procedural unfairness to him as a result. 

14.  As for his complaint of the Board using unreliable or outdated or hearsay information in assessing that it would be safe for him to return to India, the applicant again has failed to provide any particulars or specifics, and upon examining those COI listed and referred to by both the Director and the Board in their consideration of the applicant’s claim, I do not see any basis for him to make such an assertion, nor do I find any merit in this complaint of his. 

15.  In the premises and having considered 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