GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1160/2017

[2018] HKCFI 1776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1160 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following;

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 26 (DOB: 20 November 1991).

2.  The Applicant claimed he would be harmed or killed by his relatives because he had dispute with them over the property of his grandfather.  

3.  The Applicant said his grandfather Gurdev had three sons (Jaswinder, Bittu and Bunty) and a daughter (Parwinder). Jaswinder was the Applicant's father.

4.  The Applicant's mother Paramjeet told the Applicant that his grandfather died intestate. Under the Indian law, Gurdev’s property went to his wife, the Applicant's grandmother Harabhajan.

5.  Jaswinder wanted to live separately. He asked Harabhajan for his share of the family’s property. That led to many disputes in the family. In 1992 or 1993 (when the Applicant was about aged one), Bittu killed Jaswinder. This was done in the presence of Parwinder and the grandmother’s brother Balvir. No one reported the matter to the police because everyone wanted to keep the secret within the family.

6.  After Jaswinder’s death, Paramjeet and the Applicant were cast out by other family members. Paramjeet took the Applicant to live with her parents.

7.  In August 1994, Paramjeet wrote to the police to complain that Bittu and Bunty were violent to her. She also complained they and other family members had attempted to kill her.

8.  Paramjeet later lodged a maintenance claim for the Applicant against Harbhajan. In 2000, the court granted that the Applicant should receive Jaswinder’s share of Gurdev’s estate when the Applicant reached adulthood.

9.  The Applicant claimed that in the five years before he left India in February 2012, Bittu had threatened him several times on the phone. Bittu threatened to kill the Applicant if the latter would ask for his share of the family’s property or make such claim in court.

10.  The Applicant reported the matter to the police but the police took no action.

11.  In November 2010, the Applicant lodged a claim against Harabhajan in order to get his entitled properties. However, he lost his case finally. He believed the result had something to do with the other side’s connection with politicians.

12.  In June 2011, the Applicant was forced into a van by two men. Bittu was there. He threatened to kill the Applicant if the latter would ask for his share of the family’s property. Bittu assaulted the Applicant too. The Applicant managed to escape eventually. He and his maternal uncle went to the police station to seek help but the police took no action. The Applicant believed it was because Bittu was connected to the Shiromani Akali Dal (“SAD”), which was a party in the ruling coalition in Punjab. Bittu was also a friend of a member of the Legislative Assembly.

13.  The Applicant claimed that the India authorities could not protect him. Internal relocation was not viable because Bittu had connections with SAD. He decided to leave India.

14.  The Applicant left the country on 5 February 2012. On 9 February 2012, he came to Hong Kong as visitor. He, however, did not seek protection then but overstayed from 24 February 2012. When he was arrested four months later in June 2012, he raised a torture claim. [1]

15.  In September 2012, the Director of Immigration (“the Director”) refused the Applicant’s torture claim. The Applicant did not appeal against the Director's decision.

16.  In March 2014, the Applicant raised a non-refoulement claim.

17.  The Applicant said Bittu’s son Harmanpreet still threatened the Applicant's mother in India as late as 2015/2016 that he would kill the Applicant through someone.

18.  In the ensuing two-tier screening process here, the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and risk of violation of the right to life (BOR2 risk)[4].

19.  On 29 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

20.  Things happened in this order: –

2012-2-5	The Applicant left India for Thailand by air.
2012-2-9	The Applicant entered Hong Kong as visitor. He was permitted to stay until 23 February 2012. He did not leave.
2012-6-11	The Applicant was arrested by the police.
2012-6-13	The Applicant raised a torture claim.
2012-9-13	The Director interviewed the Applicant.
2012-9-26	The Director refused the Applicant’s torture claim. [“the Director's 2012 decision”]
2014-3-6	The Applicant raised a non-refoulement claim.
2016-7-20	The Director interviewed the Applicant again.
2016-8-3	The Director interviewed the Applicant for the third time.
2016-9-1	The Director refused the Applicant’s claim with respect to these two applicable grounds: persecution risk and CIDTP risk (BOR3 risk). [“the Director's 2016 decision”]
2017-6-7	The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk).
2017-6-21	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-6-23	The Director refused the Applicant’s claim with respect to the last applicable ground: life risk (BOR2 risk). [“the Director's 2017 decision”]
2017-11-16	The Applicant appeared before the Board for appeal.
2017-12-14	The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Board's decision”]
2017-12-29	The Applicant applied for leave for judicial review.

Respondents

21.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

22.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents.  The Board is the first putative respondent; the Director is the second putative respondent.

Director of Immigration (the Director)

The Director’s 2012 decision

23.  In 2012, the Director processed the Applicant's torture claim under the CAT screening mechanism.

24.  The immigration officer did not accept the Applicant’s claim as credible. However, even on the Applicant's own account of events the officer considered the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The alleged dispute between the Applicant and Bittu was a domestic dispute. The situation was not instigated by the state, SAD, government authorities or officials. There was no evidence of state consent or acquiescence. The officer was not satisfied there was any torture risk.

25.  The officer had studied relevant country-of-origin information (“COI”). He considered reasonable state protection and internal relocation were available to the Applicant. He refused the Applicant’s torture claim. [The Applicant did not appeal to the Board.]

The Director’s 2016 decision

26.  The Applicant raised a non-refoulement claim on 6 March 2014.

27.  In 2016, the Director processed the Applicant’s non-refoulement claim with respect to persecution risk and CIDTP risk (BOR3 risk) under the Unified Screening Mechanism.

28.  In the Director's 2016 decision, the officer (a different officer from the one dealing with the Applicant's torture claim in 2012) did not make specific findings on the Applicant’s credibility. However, even on the Applicant's proclaimed account of events the officer considered the level of risk against the Applicant was low. The officer found there was no evidence the alleged enemies had real intention to kill the Applicant.

29.  The officer was aware there were reports of police corruption in India. However, there was no evidence that the malpractice was systematic. The officer did not accept that the Applicant's complained situation had any official involvement or was acquiesced by the state. On the other hand, there was objective COI showing ongoing reforms in the country. There were also alternative avenues to seek justice. The officer was satisfied reasonable state protection and internal relocation were available to the Applicant.

30.  The officer did not accept the Applicant faced any real persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those two applicable grounds.

The Director's 2017 decision

31.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the last applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.

32.  In the Director’s 2017 decision, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the last applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

33.  The Applicant did not appeal to the Board with respect to the torture claim under the CAT screening mechanism in 2012. He only appealed on 14 September 2016 against the Director's 2016 decision, which application automatically included the appeal of the subsequent Director's 2017 decision under the Unified Screening Mechanism.

34.  The Adjudicator found there were contradictions in the Applicant’s allegations. The Applicant said his grandfather Gurdev died before Jaswinder but there were documents showing Gurdev testified Jaswinder’s death. Furthermore, the Applicant claimed that Bittu was associated with a member of the Legislative Assembly called Parkash by the time of the van incident in mid-2011. COI, however, revealed that Parkash was not elected as a member of the Legislative Assembly until 30 January 2012.

35.  The Adjudicator also doubted whether the Applicant was really in fear because he did not leave India as soon as he had got his passport. He left only two months later. Also, the Applicant stayed in Thailand for five days before coming to Hong Kong merely because his friend wanted to visit Thailand. Last but not the least, the Applicant did not seek protection in Hong Kong once he arrived but only after he was arrested by the police four months later.

36.  The Adjudicator noted that even on the Applicant's own account of events the Applicant still failed to prove his alleged enemies would really execute their verbal threats. There was no evidence that the Applicant had been inflicted with severe ill-treatment.

37.  The Adjudicator found that in any event state protection and internal relocation were available to the Applicant.

38.  The Adjudicator did not accept the Applicant had any real persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.

Grounds of judicial review

39.  In his affirmation, the Applicant complained: –

(a)  lack of legal representation;

(b)  lack of language assistance

(c)  lack of communication among authorities;

(d)  lack of fair hearing.

Court hearing

40.  In Form 86, the Applicant requested a hearing.  The hearing took place on 7 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

41.  The Applicant said his English was not good but a friend helped him to prepare Form 86 and the affirmation for the current application of judicial review.

42.  The Applicant admitted he had been assisted by the Duty Lawyer Service up to the Director's 2016 decision. He got no more legal assistance after that.

43.  The Applicant admitted he did receive the Director’s letter dated 7 June 2017 inviting him to submit additional facts for the consideration of BOR2 risk. He did not respond to that letter because he had no more to submit to the Director. He confirmed he had submitted all information and materials to the Director and the Adjudicator for their consideration of his claim.

Discussion

44.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

45.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]

The Director's 2012 decision

46.  In Form 86, the Applicant specified the Director's 2012 decision as a subject matter in respect of which relief was sought.

47.  The Applicant lodged a torture claim in 2012. The Director refused his claim in the same year. There was no appeal to the Board. The Applicant explained in court that he did not receive the Director's 2012 decision (dated 26 September 2012).

48.  If the Applicant really did not receive notice of the torture claim decision in 2012, it was his duty to chase the result diligently and file appeal and then seek judicial review as soon as he could. He did not. He sat on the matter for years and thus deprived himself of the right to follow up the Director's 2012 decision. His torture claim was well concluded in 2012.

49.  The Applicant had not appealed against the Director's 2012 decision. He could not now after several years ask for judicial review on that decision. Firstly, he had not duly exhausted the appeal mechanism with respect to that decision. Secondly, he himself was to be blamed for not following up the torture claim within reasonable time. He had no justification for the substantial undue delay of more than 5 years. In such circumstance, apart from lacking merits (see below), the Applicant's judicial review of the Director's 2012 decision should not be allowed.

The Director's 2016 decision plus 2017 decision & the Board’s decision

50.  In relation to the Applicant’s non-refoulement claim raised in 2014, the Director rendered a decision dated 1 September 2016 with respect to persecution risk and CIDTP risk (BOR3 risk) and a further decision dated 23 June 2017 with respect to life risk (BOR2 risk). The Applicant appealed to the Board. The Board rendered its decision on 14 December 2017.

51.  The Director's 2016 decision and 2017 decision were both more than three months old by the time the Applicant filed his current application for judicial review on 29 December 2017. However, the Applicant should not seek judicial review against the Director's 2016 decision and 2017 decision before the Board rendered its appeal decision on 14 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's 2016 decision and 2017 decision albeit late on 29 December 2017; the application against the Board's decision was made in time.

Merits

Lack of legal representation

52.  The Applicant complained that he was not provided with sufficient legal assistance.

53.  The Applicant had been assisted by the Duty Lawyer Service both in relation to the Director's 2012 decision and the Director's 2016 decision.

54.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[6] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

55.  The Applicant complained that he was not provided with sufficient interpretation/translation assistance.

56.  In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance and handling English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

Lack of communication among authorities

57.  In his affirmation, the Applicant complained the Director made no attempt to ensure he got the letter inviting him to submit additional facts for the consideration of BOR2 risk. He said he was not certain whether the Director had issued that letter and the subsequent notice of decision on BOR2 risk to him. He accused the Director did not give him a fair chance to explain himself on the issue. The Applicant again lamented on his difficulty in understanding English documents.

58.  The Applicant’s complaint on language assistance has just been dealt with.

59.  In court, the Applicant admitted he did receive the Director’s letter dated 7 June 2017 inviting him to submit additional facts for the consideration of BOR2 risk. He did not respond to that letter because he had no more to submit to the Director. He confirmed he had submitted all information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim. In such circumstance, the Applicant had been given sufficient opportunities to present his case fully. There is nothing he can complain.

Lack of fair hearing

60.  The Applicant complained the Director was excused from attending the Board hearing on 16 November 2017. He failed to show how the Director’s absence would prejudice his appeal. There is no substance in this complaint.

61.  I have reviewed the Director's 2012 decision, 2016 decision and 2017 decision under ‘rigorous examination and anxious scrutiny’. I have also reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and they applied the law correctly. They considered the Applicant's claim carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

62.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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