HCAL565/2017
[2018] HKCFI 1288
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 565 of 2017
BETWEEN
Davinder Singh
Applicant
and
Torture Claims Appeal Board /
Putative Respondent
and
Director of Immigration
Putative
Application for Leave to Apply for Judicial Review
Following;
Order by Deputy High Court Judge Woodcock :
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 entered Hong Kong on 18 March 2014 from China and was permitted to remain until 1 April 2014. However, he did not leave and became an over-stayer only to be arrested on 7 April 2014. He then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 13 April 2017. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 10 August 2017. The applicant then filed a notice of application for leave to apply for judicial review on 29 August 2017. The applicant requested an oral hearing and received a notice of hearing dated 24 November 2017 notifying him of the hearing date of 29 January 2018.
2. The applicant did not apply for legal aid until 9 January 2018, over four months after he filed the application for leave to apply for judicial review. I exercised my discretion and lifted the 42-day stay pending a legal aid application. Under section 15 of the Legal Aid Ordinance and its regulations, there is usually an automatic stay of proceedings of 42 days following an application for legal aid unless otherwise ordered by the court. It is in the court’s discretion. Mr. Recorder Kwok, SC, in Bank of China (Hong Kong) Ltd v Fu Ming Kong Michael and Anor HCA 7769 and 3909 of 2000, unreported, 24 June 2005, stated that:
“The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time: - (a) for the Director to process an application for legal aid; and (b) in the event of legal aid being granted, for the assigned lawyer(s) to effectively represent the assigned client, and, where appropriate, to apply for more time. The statutory stay is in aid in, not an obstacle to the administration of justice…”
3. The Court of Appeal in Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Ltd CACV 39/1993, unreported, set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay. The guiding principle is to do what is fair and just between the parties. Yuen J, as she then was, in Re Ip Lai Fan and Ip Lam On HCSD 10/2000 and 11/2000 (unreported), 3 November 2000, summarised Nazareth JA’s guidance in the Lee Shiu Ming case as follows:
“… the court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman. However, if a court was satisfied that the application for legal aid was an abuse of process, then the court should exercise its discretion to lift the stay.”
4. The court sent the applicant a letter dated 22 November 2017 asking him if he was applying for legal aid. Two days later a notice of hearing was sent to the applicant yet he did not apply for legal aid even after receiving this notice. During the oral hearing, the applicant agreed that those letters were posted to the address he had given the court but he had moved house without informing the court. He did not receive the letter of 22 November 2017 but did receive the notice of hearing dated 24 November 2017 when a friend of a friend gave him the letter at the end of December 2017. After that, he applied for legal aid.
5. The applicant had no reasonable excuse for not applying earlier for legal aid. He said he did not apply when he filed his application because he did not know about legal aid and the friend who had helped him file his application did not mention legal aid to him. After that, that friend left and no longer gave him advice as to what to do. There is no good reason for the applicant’s tardy application except to delay the hearing by at least 42 days. In my view this applicant is abusing the process. I exercised my discretion, lifted the legal aid automatic stay and proceeded with his application on the date of the hearing.
Observations
6. The basis of the applicant’s fear is that if he were to return to India he would be harmed and killed by a Sandeep Singh who supported the Shiromani Akali Dal (“SAD”) whilst the applicant supported the Indian National Congress (“INC”). Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need for me to repeat it here.
7. The applicant is now 30 years old and after completing his secondary education he studied for a bachelor of arts at a college in Jalandhar from 2011 to 2012 and then in a second college until 2014 but he did not complete his degree. At the same time, he worked as a farmer on his family’s farm. His family were long-standing supporters of the INC and the applicant became a president of the INC student union at his second college. He became a target of Sandeep who was the president of the SAD student union. The student unions have always been rivals therefore, there is animosity between the presidents.
8. After the applicant became president of the INC SU he was able to convince about 15 SAD students to join his union which upset Sandeep who began to persecute him. The applicant would speak ill of Sandeep to other students to convince them to become members of the INC SU instead of the SAD SU. This led to even further animosity. On several occasions Sandeep and a few of his followers attacked the applicant and his friend outside of the college, on one occasion they used weapons. On that occasion the applicant was cut with a knife and received a fracture skull, hands and shoulders. He was hospitalised and his wounds needed stitching. After his release from hospital he moved to live with his grandparents for about six months in a village about 45 minutes away from his home.
9. The applicant still suffers from poor memory because of the head injury. After that, the applicant then reported Sandeep to the police for these attacks as well as accusing him of trafficking dangerous drugs. The applicant said the police did not take action because Sandeep’s father was politically connected and a member of Parliament of SAD in the Punjab.
10. Sandeep similarly made reports to the police about the applicant and his friends trafficking dangerous drugs. The applicant had been arrested on several occasions, detained for a day or two and then released with a warning from the police not to create more trouble with Sandeep and his family if he wished to remain living in the village.
11. The applicant returned to the college from his grandparents’ home in about February 2014 in order to sit his exams. He completed those exams one month later without any trouble or harassment from Sandeep. He heard that Sandeep had been attacked by other students and Sandeep blamed those attacks on the applicant. The applicant decided to go on holiday after his exams and travel to China and Hong Kong. Whilst in Hong Kong his family told him that the police were looking for him and that there were strangers who threw rocks at their family home. The applicant believed it was related to Sandeep getting revenge so he overstayed in Hong Kong because he was in fear of his life.
12. The adjudicator, as did the Director, 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”).
13. The adjudicator treated the appeal as a rehearing and the applicant adopted all the information in the appeal bundle and confirmed they were all true and accurate. He also elected to answer questions from the adjudicator of the TCAB. The adjudicator correctly set out the law and key legal principles applicable to all the grounds in his decision. He also set out the applicant’s case and his analysis and findings.
14. The adjudicator accepted that there was a grudge between the applicant and Sandeep which led to them both making reports to the police about the other. The applicant admits that he provoked Sandeep which led to the grudge. It also led to that one violent attack on the applicant and his friend. According to the applicant, this type of violence and shenanigans was not uncommon; Sandeep had also been attacked by supporters of other parties on several occasions.
15. The adjudicator did not believe that the applicant was truly frightened of Sandeep even after the physical attack because he returned to the college to sit his exams over a period of a month. During that month he did not encounter any problems or issues with Sandeep. After his exams he decided to take a holiday before his results were made known. Whilst he was on holiday he was told of strangers throwing rocks at his house and the police coming to look for him. This hearsay evidence was not supported by any evidence such as a warrant of arrest. He decided to stay in Hong Kong on the strength of that hearsay evidence.
16. The applicant told the adjudicator that he is no longer a student at that college and would not return to that college if he went home. It would appear that Sandeep was no longer a student of that college which means they were no longer members of rival student unions. The adjudicator considered the quality of the applicant’s evidence and what he believed and then found that it did not amount to physical or mental injury or torture. There was no evidence he was wanted by the police and ultimately his fear was based on hearsay and speculation. The applicant had left India with his own passport to go on holiday without any trouble through Immigration.
17. There was no evidence that the police were anyway supporting Sandeep nor was there any evidence to implicate his father asserted any political influence over the police. The adjudicator concluded that the applicant was not at any real risk from Sandeep if he were to return to India. There was insufficient evidence to substantiate this. In any event, the adjudicator did consider that if there was any risk, internal relocation was a viable option without undue hardship for a healthy, young and well educated man.
18. The adjudicator applied his findings to the law and key legal principles and found that the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for a Refugee Convention reason for the purposes of a non-refoulement protection claim. The adjudicator confirmed the decisions of the Director.
Leave to apply for judicial review
19. The applicant has named both the Director and the TCAB as proposed respondents but then wrongly also named them both as interested parties in his Form 86. There are no grounds in his affirmation directed at the Director.
20. 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 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 appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; 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.
21. 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; and
(3) procedural irregularity/no Immigration Department representative at the appeal which was unfair.
22. 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”.
23. 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.
24. The applicant’s second ground is also without merit. In it, he complains the duty lawyer service is saving costs and refused to translate his non-refoulement claim form despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. That form was completed by the applicant with the assistance of a legal representative and an interpreter. During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly. If there had, the applicant would have been able to particularise it. There is no merit in this ground.
25. The last ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing. The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused. This procedure is not unfair to the applicant, he suffered no prejudice; there is no merit to this ground.
26. In submissions during the oral hearing the applicant only added that it would have been better for him to get legal advice before filing this application for leave to apply for judicial review.
27. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. I find no substance in the grounds of this application; they are not particularised or substantiated. 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. The same applies to the decision of the Director.
28. 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.
Dated 19th day of June 2018
(Alan Ngan)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 19/6/2018
Davinder Singh
Applicant’s ref. no:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/6/2018
Torture Claims Appeal Board /Non-Refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1