KAHLON RAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 841/2017

[2018] HKCFI 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 841 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 refused.

Observations for the Applicant:

1.  The applicant is a 38-year-old man of Indian national who arrived in Hong Kong on 2 August 2014 with permission to remain as a visitor until 16 August 2014 but overstayed and was eventually arrested by the police on 1 September 2014.  After he was referred to the Immigration Department for investigation, he raised his non-refoulment claim on 3 September 2014 with the Immigration Department on the basis that he would be harmed or killed by his ex-wife’s family over money disputes if he is to return to India.  On 9 October 2014 he was released on recognizance pending the process of his claim.

2.  The applicant was born and raised in Jalandhar City, Punjab, India where his father ran a flour mill.  After obtaining his university degree in 2002, he helped out in his father flour mill business until 2009 when he started his own garment business in Jalandhar.

3.  In 2008 the applicant married his ex-wife RK who came from a wealthy and influential family in Moga City with connection to the Akali Dal Party with an uncle who was a member of the Legislative Assembly and later became the Jail Minister of Uttar Pradesh, while another uncle was a police inspector of the Moga City police station.

4.  His marriage however started to deteriorate in 2009 due to his ex-wife’s extra-marital affairs, and in April 2009 she left the applicant to return to her family home in Moga City on false accusations that she had been beaten by him and that he had demanded money from her and her family.  One day in May 2009 his ex-wife and her parents and other members of her family together with some people from the village council and a mediator came to the applicant’s home to try to resolve the marital disputes, during which some of her family members lost their temper and tried to attack the applicant.  They then demanded compensations from the applicant over dowries and threatened to kill him before leaving angrily.

5.  After the meeting his ex-wife and her family lodged a complaint to the police against the applicant with false dowry claims, for which the applicant was summoned to the police station for investigation during which his ex-wife and her family were also present and demanded compensations from him for all their expenses paid for the wedding, and when the applicant refused, they proceeded to file a claim in court in May 2009 with the same false allegations against him and for huge compensations for dowries, while the police also came to search his home and detained his sister for a week for investigation.

6.  As a result the applicant left for Dubai in May 2009 to avoid the stress of his ex-wife’s actions against him, but upon his return home a week later he still feared the harassments of his ex-wife’s family and decided to first take shelter at his uncle’s home at Salempur, Musalmana, Jalandhar, and then moved to his aunt’s home in New Delhi where he stayed for the next five years with no further harassment from his ex-wife or her family, while he worked on a garment business but which did not go well and was closed down in 2012.

7.  Although the applicant later heard that his ex-wife had divorced him in in 2012 in Moga City and then remarried in the same year, he was still fearful of harassments from her family and the on-going court case against him over the dowry dispute, and that he suspected that her family was involved in a traffic accident in which his brother was killed back in 2012, he decided in 2014 to leave India for his own safety when he first went to Malaysia where he stayed for a month before arriving in Hong Kong on 2 August 2014 and subsequently lodged his non-refoulement claim, and on 17 February 2016 upon completing his Non-refoulement Claim Form (“NCF”) with legal assistance under the Duty Lawyer Service, he proceeded to attend screening interviews with legal representation and assisted by an interpreter before an Immigration Officer.

8.  By a Notice of Decision dated 3 June 2016 the Director of Immigration (“the Director”) rejected his 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 (“CIDTP”) 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”).

9.  In his detailed decision and on the basis of the applicant’s case the Director assessed that the level of risk of harm from his ex-wife’s family upon his return to India as low given that any threats from them occurred back in 2009 and that there has been no further incident since other than the death of his brother in the traffic accident with no reliable evidence at all of their involvement.  The Director also found no evidence of any involvement of the police in their disputes or any influence of the uncles of his ex-wife on the police, and concluded that whilst Country of Origin Information (“COI”) corroborate the applicant’s concerns over police corruption in India, objective COI also show on-going reforms in the monitoring of police corruption and improvements of their efficiencies and hence state protections would be available to the applicant, and that given the large population in India with more than 1.2 billion people spread over vast territory of more than 2.9 million square kilometers, reasonable internal relocation alternatives are available to the applicant as an able-bodied person with an university degree and extensive working experience that it would not be unduly harsh for him to relocate to other cities such as New Delhi away from any threats from his ex-wife’s family. 

10.  By a Notice of Further Decision dated 6 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 10 June 2016 and attended an oral hearing before the Board on 17 August 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision and upon hearing the applicant in evidence the Board accepted his claims of marital and dowry disputes with his ex-wife and her family as asserted, but regarded them as purely private and personal matters with no evidence that his ex-wife’s politician uncle or the government has been involved in any ill-treatments of the applicant in any way, as he was able to freely leave India and return without any problem with immigration which indicates that the government of India has no adverse interest in him at all.  The Board therefore found the applicant not at any real risk of harm from his ex-wife or her family or the police or judicial authorities in India if he were to be refouled there, nor did it accept that he genuinely holds such a fear, or that any such fear if real is well-founded, and therefore concluded that he has failed to establish a case in respect of any of the applicable grounds warranting his protection from refoulement to India.

13.  Nevertheless the applicant on 3 November 2017 filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date, he provided four grounds for his intended challenge as follows:

 (a) lack of legal representation throughout his appeal before the Board;

 (b) lack of legal assistance including language assistance/interpreter and the opportunity to submit additional facts relevant to his claim under BOR 2 risk;

 (c) wrongful exercise of case management power in rejecting his claim on credibility and in giving undue weight to COI in its assessment of the law enforcement situation in India; and

 (d) lack of fair hearing by not requiring the attendance of the Director at his oral hearing before the Board.  

14.  For the applicant’s complaint of no legal representation in his appeal before the Board, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: per Lam VP in Balwinder Ram [2018] HKCA 171, CACV 278/2017.  

15.  As noted above the applicant already had the benefit of legal representation in presenting his case to the Director, and even now in his leave application including his appearance in person at the oral hearing before me, he did not state or outline what further information or argument which he wished to make but unable to do so in his appeal before the Board.  As I see it he had had the opportunity to present his case fully before the Board and with the assistance of an interpreter, and I do not find anything amiss arising from lack of legal representation in his appeal before the Board.

16.  As for lack of legal assistance/interpreter to submit additional facts relevant to BOR 2 risk under his ground (b), neither did he in his appeal including an oral hearing before the Board nor even now in his leave application before me for judicial review state or outline what information regarding BOR 2 risk that he wished to provide, and on the facts of his case, I am of the view that the assessment of BOR 2 risk could effectively be made on the same materials presented earlier on his behalf with legal assistance to the Director in the process before the Board, and I do not see any merit in his argument based on lack of legal or language assistance regarding BOR 2 risk on the basis of the facts of this case.

17.  Regarding ground (c) of wrongful case management over the applicant’s credibility and selective reliance on COI, it is clear that the adjudicator for the Board assessed his credibility with the benefit of hearing his evidence and answers to his questions at the oral hearing with details set out in paragraphs 54 – 74 of the decision before arriving at the following findings on credibility:

“ 75. I am prepared to accept the Appellant’s assertions concerning his arranged marriage to his ex-wife and its breakdown, including the possibility that she made dowry allegations against him to the police. I am also prepared to accept the possibility that during a heated settlement discussion, one or more of her family members may have threatened to kill him in an instinctive outburst of spleen. However, on the credible evidence before me, I find no evidence that his ex-wife and/or her family members ever ill-treated the Appellant physically. I am also not persuaded that the remainder of his claims, in particular, that she and/or her family attempted to kill or seriously harm him in the past, is reliable in any way.

76. The dispute between the Appellant and his ex-wife and her family is a purely private and personal matter.  He last had contact with them in May 2009. According to him, his ex-wife divorced him and remarried in 2012.  There is no evidence that her politician uncle, or any member or official of the Akali Dal Party, least of all the government of India, has been involved in ill-treating the Appellant in any way.  The Appellant was able to leave India for Dubai through official immigration channels in May 2009.  He was able to leave India again for Malaysia, through official immigration channels in July 2014.  There is no evidence that the government of India has any adverse interest in the Appellant at all.”

18.  On this basis the Board was certainly entitled to reach its conclusion on the credibility issue and I do not see any wrongful exercise of its power as asserted by the applicant, and in the absence of any particulars or specifics put forward by him, nor do I see anything amiss in the Board’s reliance of COI in its assessment of the law enforcement situation in India, as it is plain that the Board did take into proper account and consideration of those which corroborate the applicant’s concerns over police corruption with proper balance with those that show on-going reforms in police efficiencies and availability of state protection to the applicant in the event of his refoulement there.

19.  The complaint in the last and remaining ground about the Director not being present at the applicant’s hearing before the Board is a non-starter, there being no legal requirement for the Director to do so, and I fail to see any useful purpose or benefit for his attendance to the applicant in his appeal before the Board, as after all it was a re-hearing of his claim before another person other than the Director whose decision went against him in the first place.  This ground simply makes no sense to me at all.

20.  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, or any failure on their parts to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

21.  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 therefore 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