JASWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL505/2017

[2018] HKCFI 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 505 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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong from China on 22 September 2013 and was permitted to remain until 6 October 2013.  He overstayed and was arrested by the police on 9 October 2013.  On 25 October 2013 he lodged his non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 4 November 2015.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 April 2017.  He filed a notice of application for leave to apply for judicial review on 10 August 2017 and requested an oral hearing which was set down for 11 January 2018; the applicant appeared in person having had his application for legal aid refused.

Extension of time refused

2.  The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision (order 53 rule 4).  He is in fact just over one month late.  His notice of application does not acknowledge the delay nor does it set out the full reasons for the delay as it should.  There is no application for an extension of time to file his application in light of the delay.  There is no acknowledgement of the delay nor any explanation in his supporting affirmation.

3.  A reason was given during the hearing of 11 January 2018.  The applicant said he moved address which was why he did not receive the decision of 7 April 2017 posted to him until he was informed by an Immigration officer that the appeal had been determined already.  He then went personally to the TCAB office to request a copy of the decision before filing this application.  He acknowledges that he forgot to update his address with the Immigration Department and the TCAB.  He assumed that because he told the International Social Services office of his new address they would have informed the Immigration Department on his behalf.

4.  The applicant has a duty to inform the TCAB of any change of address.  The delay in filing this application is not insignificant, there was no proper explanation for the delay and now that there is, it is not a good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general importance.  Extension of time sought should be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

5.  The basis of the applicant’s fear is that if he were to return to India he would be harmed or killed by his paternal uncle Rashpal Singh (“Rashpal”) because of a land dispute with him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need to summarise it here.

6.  The applicant’s father inherited six acres of fertile land from his own father.  One of his uncles, Rashpal, was jealous that this plot was more fertile and valuable which led to a family dispute in April 2011. Rashpal belonged to the Akali Dal party (“SAD”) whereas the applicant’s father was a supporter of the Congress Party.  These political differences made the land dispute even worse.  In April 2011 whilst the applicant and his father were farming that land, his uncle and about 12 men approached them.  His uncle demanded the land be transferred to him and that if it was not then the applicant’s life was in danger.  When the applicant’s father refused, the confrontation became physical and they were attacked by iron rods.  Only when other farmers intervened did Rashpal and men disappear.  The applicant received stitches in a knee injury and his father received a head wound.

7.  The applicant’s father was hospitalised and when he was released he reported the attack to the police station however, the police refused to register the report.  A villager told the applicant’s mother that Rashpal had bribed the police.  The president of the local Congress Party could not help their family because the SAD were the ruling party.

8.  The second incident happened in January 2012 after the applicant himself had personally been threatened by his uncle through messages sent through villagers.  His uncle intercepted him on his way home one day and threatened to kill him if his father did not transfer the land to him.  The applicant saw iron rods in the uncle’s vehicle.  When he tried to run away he was slapped about but managed to escape.  He told his father who became very worried.  His father then died a few days later due to heart failure and the land was transferred to the applicant pursuant to his father’s will.

9.  Rashpal almost immediately demanded the applicant transfer the land to him or else he would be killed.  The applicant’s mother sent him to live with her brother in a different village where he lived peacefully for about three months until a villager told him that his uncle knew of his whereabouts.  He was advised to and it was arranged for him to leave India immediately.  The applicant departed for China on 12 September 2013.  He was told that after he left, Rashpal would turn up every 10 days or so looking for the applicant.

10.  The adjudicator, as did the Director, analysed the applicant’s claim under the following 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”); and

(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”).

11.  The adjudicator of the TCAB treated the appeal/petition as a rehearing.  An oral hearing was conducted and the applicant elected not to answer questions.  The adjudicator set out the applicant’s claim, the law and key legal principles applicable to all three grounds and the Country of Origin (“COI”) material he found relevant to State protection and internal relocation in his decision.  He did not accept his evidence as the truth and found that he had failed to establish he was entitled to claim protection under any of the above applicable grounds.  The adjudicator set out his reasons for his finding in his decision; why he did not believe the applicant was a genuine claimant.

12.  The adjudicator then proceeded to consider the grounds on the basis that his evidence was truthful.  He considered the definition of torture under section 37U(1) of the Immigration Ordinance and found even on the applicant’s own facts, he was not able to establish that severe pain or suffering had been inflicted on him by his uncle and that there were substantial grounds for believing him to be in danger or at a real risk of torture by Rashpal if the applicant returned to India.  The applicant’s torture risk claim failed.

13.  With regard to a BOR 3 risk, the adjudicator found there is no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  The adjudicator found the applicant is not at risk of being subjected to torture or CIDTP if he returned to India; his BOR 3 risk claim failed.

14.  Lastly, he could not establish he had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if he was refouled to India.  His fear stems from a private dispute with a relative.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  If I am wrong and should have granted an extension of time to file this application then, I find the adjudicator’s decision to be without fault, he carefully analysed the material, claims and evidence.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

16.  He relied on three grounds, the first was that he was not properly prepared for the appeal hearing because he only received the appeal bundle several days prior to the hearing and it was in English.  He did not know its contents and was confused on the day of the hearing.

17.  He was asked during the hearing if he informed the adjudicator of the TCAB that he was confused and did not understand the bundle and proceedings because there is no mention of any complaint or request to adjourn in the adjudicator’s decision.  The applicant could not recall if he mentioned this to the adjudicator.  There was an interpreter present to assist the applicant and I am sure if he was genuinely confused he would have asked for clarification and assistance. Moreover, this application and affirmation were in English which throws doubt on this ground. There is no merit in this ground.

18.  The second ground submits that the applicant answered all the questions and gave evidence honestly.  However, the Director says in the decision that the applicant elected not to give evidence. During the hearing, the applicant could not recall if he did or did not give evidence in his appeal.  There is no merit in this ground.

19.  The last ground complains of the TCAB relying on Country of Origin information which was not recognised, hearsay and out of date.  There are no particulars provided by the applicant to support this ground.  In any event, the adjudicator did, despite his findings that the applicant was not a credible and genuine claimant, look at and set out the Country of Origin information he referred to.  I am satisfied there is no merit to this ground.

20.  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.

21.  In my judgement, even if I had granted an extension of time to file this application, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial 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