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

HCAL 76/2018

[2019] HKCFI 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 76 of 2018

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 27-year-old national of India who entered Hong Kong illegally on 6 August 2015 and surrendered to the Immigration Department on 11 August 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a policeman over certain dispute.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Mandi Knurd, Punjab, India.  After leaving school he worked on his family farmland and lived with his family in the village.  In early 2015 his brother together with his friend assaulted a man GS for having a secret relationship with the friend’s sister as her family was against such relationship and inflicted a head injury to GS with fractures to his limbs who had to be hospitalized.  The applicant’s brother and friend were subsequently arrested by police but were able to make bail pending the police investigation.

3.  Upon recovery from his injuries GS tried to take revenge against the applicant’s brother and his friend but his brother managed to escape and fled from the village into hiding elsewhere.  When GS was unable to find him, he turned to the applicant and threatened to kill him unless he disclosed his brother’s whereabouts, and on one occasion while the applicant was driving a car in the village, GS tried to stop him by hitting his car with an iron rod.

4.  The applicant did not report the matter to the police but when he informed his family of GS’s threats, they became concerned for his safety as GS was a police officer with connection to the ruling Alkali Dal Party, and when the applicant was advised by his friend that he could seek protection in Hong Kong, he therefore departed India on 1 August 2015 for China, and when he was refused entry into Hong Kong, he returned to China and later sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 December 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real or substantial risk of the applicant being harmed or killed by GS upon his return to India as GS’s behavior showed no real intention to cause any serious harm to the applicant, that his problem with GS was a private and personal dispute that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other area away from his home district such as Delhi or Mumbai where it would be difficult if not impossible for GS to locate him.   

7.  The applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 6 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board accepted the applicant’s assertion of the dispute between his brother and GS, but found his account of the threats from GS vague and unreliable, and concluded that even if those threats were true that state or police protection would be available to the applicant, and that he can also safely and reasonably relocate to a different part of India when there is absolutely no evidence to suggest that GS has any influence outside his local area. 

9.  On 16 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of language assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly; and

(3)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

10.  For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.  As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

13.  As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

14.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

15.  In the premises and having proceeded to consider 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