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

HCAL 452/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 452 OF 2017

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J U D G M E N T

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1.  The applicant is an Indian national who entered Hong Kong on 2 July 2006 and was permitted to remain until 16 July 2006. He then left Hong Kong for Mainland China before returning on 9 August 2006 and was permitted to remain until 15 August 2006. However, the applicant overstayed in Hong Kong since 16 August 2006. On 18 July 2007 the applicant was arrested by the police for overstaying.

2.  The applicant applied to the United Nations High Commissioner for Refugees (“UNHCR”) but his application for Refugee status was rejected in March 2009. The applicant lodged a torture claim on 8 May 2009. He was arrested again on 21 January 2010, this time for taking up unapproved employment for which he was sentenced to three months’ imprisonment. His torture claim was taken to be a non‑refoulement claim assessed under the Unified Screening Mechanism (“USM”) commencing from March 2014.

3.  His claim for non-refoulement protection was assessed on all applicable grounds (including risk of torture, BOR 3 risk and persecution risk) and rejected by the Director of Immigration (“the Director”) on 26 May 2015. By a Notice of Further Decision, the Director rejected his BOR 2 risk claim on 8 December 2016. Before then, the applicant had lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) who had held an oral hearing on 30 November 2016. The adjudicator of the TCAB rejected the applicant’s appeal/petition on 10 July 2017; having considered all grounds including the BOR 2 risk.

4.  The applicant filed a notice of application for leave to apply for judicial review on 26 July 2017 and in his supporting affirmation requested an oral hearing which was set down on 16 November 2017. The applicant appeared in person having had his application for legal aid refused on 29 August 2017.

Background

5.  The basis of the applicant’s claim was that if he were to return to India he would be harmed or even killed by Balvinder Singh and his gang members because he had refused to join their gang. Their gang had strong connections to local party politicians and police officers who would side with them and probably harm the applicant as well; they certainly would not protect him. The Director and adjudicator set out the applicant’s claim and evidence in full and in detail in their decisions therefore I only intend to summarise it here.

6.  Balvinder was the leader of a notorious gang of five in the applicant’s home area. They were thugs who stole, extorted, trafficked drugs and terrorised the neighbourhood without fear of arrest or conviction.  They were the applicant’s former classmates and members of the Shiromani Akali Dal Party (“SAD”). In late 2005, Balvinder offered the applicant money to join their gang and help distribute drugs. He boasted to him that they had the financial support of SAD. The applicant refused his offer and Balvinder verbally threatened to kill him if he did not join their gang. The applicant reported this threat to the police station the following day and the reporting officer registered his case but told the applicant to gather evidence himself. He also told the applicant to consider the offer.

7.  Balvinder verbally threatened the applicant again over the telephone so he approached the police station once more four days after his first report but instead of being offered protection a police officer told him to accept the offer and join the gang or else the police would kill him. The applicant did not know the identity of this officer or the previous officer.  The applicant assumed Balvinder had paid these police officers. He did not seek assistance from any other police station or other authority in India.

8.  In early 2006, police officers paid many visits to the applicant’s home to convince him to join the gang. They threatened to frame him for crimes he did not commit and even threatened to shoot him. Balvinder and his gang who were always armed with weapons separately visited the applicant on numerous occasions to put pressure on him but he would always manage to escape through his back door when he saw them coming.  In March 2006, Balvinder and his gang did burst into the applicant’s home, catching him unaware and beat him up.  He was taken to a private hospital one hour away by motorbike where he was hospitalised for 10 days and told he had internal injuries. He did not report this attack to the police; believing it would be futile. He returned home to recover but left India for Hong Kong after about three months because he feared for his safety.

9.  He had contact with his parents only once in early December 2014 since leaving India and they told him that Balvinder and his gang still regularly visited their home looking for him and harassed their family.  Police officers had visited about 10 times looking for the applicant. His family advised him not to come home because the police would definitely not protect him. The applicant did not believe there was state protection available in India because the police are corrupt. He also believed that internal relocation was not an option because the gang had connections with SAD and the police which meant they could easily locate the applicant anywhere he went in India. In addition, he only had skills as a farmer so would have difficulty surviving, for example, in cities.

10.  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).

11.  According to the Form 86 filed by the applicant, he proposes to challenge both the decision of the Director and the TCAB. However, there are no grounds to judicial review the Director’s decision. Quite properly the applicant has utilised the channel of appeal; appealing to the TCAB. The TCAB appeal takes the form of a rehearing, a de novo hearing, all flaws or errors allegedly made by the Director would and should have been addressed and corrected by the TCAB. I see it only necessary in this case to consider leave to judicial review the TCAB decision only.

The TCAB adjudicator’s decision

12.  The adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing where the applicant elected to answer questions with the assistance of an interpreter. In his decision, the adjudicator set out the law, key legal principles and relevant authorities he relied on in assessing the applicant’s claim under all the applicable grounds.

13.  After assessing the applicant’s evidence and claim, the adjudicator concluded that as far as the torture risk was concerned, the pain and suffering of the applicant did not amount to the level of severity as required to be defined as torture. There was no evidence of pain or suffering inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. There was no evidence to suggest the authorities or the government knew of or condoned unlawful acts against the applicant. The long time lapse between those events and now were considered. The adjudicator found no substantial grounds for the applicant believing he faced a real, personal and present risk of being subjected to torture if he returned to India. His torture risk claim failed. The adjudicator also considered state protection and found it available to the applicant if there was any risk to him.

14.  The adjudicator considered what was required to invoke the protection of risk of torture or CIDTP under BOR 3 and found on the applicant’s own evidence, he had failed to establish that the ill-treatment, be it physical and/or mental, he would face if refouled attains a minimum level of severity and that he had a genuine and substantial risk of being subjected to such ill-treatment. The BOR 3 risk claim failed.

15.  The adjudicator considered whether the applicant was at risk of persecution if refouled to India. His fear did not arise from being attacked or threatened on account of race, religion, nationality, membership of a particular social group or political opinion. It arose from a private matter between him and Balvinder and his gang. His fear did not arise from any Refugee Convention reason. The adjudicator found the applicant had failed to establish there was a real chance he would be subjected to persecution if refouled; his persecution risk claim failed.

16.  The Director’s decision rejecting the applicant’s BOR 2 risk came after the applicant’s oral appeal hearing but before the adjudicator’s actual determination. The adjudicator found it unnecessary to conduct a further oral hearing. He decided to proceed to consider the BOR 2 risk of the applicant on the papers without a further hearing. The applicant had not provided the Director with any further information therefore there was no further dispute in facts and in the law that required an oral hearing for its disposition.

17.  His finding was the applicant did not sustain injuries that attained a minimum level of severity; he had suffered no serious ill‑treatment, be it physically or mentally. He did not accept he would face a genuine and substantial risk of being subjected to ill‑treatment under BOR 3. The adjudicator considered Article 2 of Section 8 of HKBORO and applying it to the applicant, found he fails to establish a personal and real risk of his absolute and non-derogable rights under that Article including his right to life being violated upon his return to India. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

18.  The supporting affirmation lists the following as grounds for seeking leave:

(1)   his lack of legal representation before TCAB is a miscarriage of Justice;

(2)   the lack of language assistance given to him can lead to unfairness; and

(3)   procedural impropriety/unfairness, his inability to read Immigration Department correspondence has led to unfairness.

19.  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”.

20.  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.

21.  The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. The applicant agreed in the oral hearing that he did approach the duty lawyer scheme but they refused to continue to represent him in his appeal for that very reason; they were of the view there was no merit in his appeal. Their assessment is on a case-by-case basis. This ground is not reasonably arguable.

22.  In his second ground, it states the applicant requested the duty lawyer scheme translate his non‑refoulement form for him but they refused citing cost restrictions. This is a form filled in by the applicant in English for the Immigration Department for the purposes of screening his claim.  He filled it in with the help of an assigned lawyer and translator. He suggested that without a translation of that document he has no means to know if his claim has been translated properly and if not, it could have potentially lead to injustice.

23.  In the hearing before me, I summarised his grounds for him but the applicant denied requesting such a translation from the duty lawyer scheme. It then became very obvious he did not know the contents of his own affirmation and he did not know what were his own grounds.

24.  The applicant admitted during the hearing that a Pakistani man who speaks Punjabi drafted his affirmation. He knows the man works as an interpreter at the Immigration Department office in Kowloon Bay and that he had been told by somebody that he was also a lawyer with offices in Tsim Sha Tsui who could assist him with this High Court application. He admitted that he paid this interpreter/lawyer “a bit” of money to submit this affirmation. The applicant admitted he did not know the contents of it at all.

25.  This affirmation has recently been used almost word for word in many applications by many asylum seekers applying for leave to judicial review decisions of the Director and the adjudicators of the TCAB. All that may differ are dates, countries of origin and some facts but the grounds are identical. I suspect that many applicants are paying for this almost identical affirmation. Despite them all blindly affirming before the Commissioner for Oaths that they solemnly and sincerely affirm the contents, it is obvious they do not know the contents of their own affirmations nor know their own grounds.

26.  On one hand, this group of applicants are being targeted and taken advantage of by someone or somebody who is working the system.  On the other, this is a blatant abuse of judiciary resources and time by a large group of applicants applying with spurious applications devoid of merit and ignorant of their own grounds.

27.  In fact, I add here that there are another one or two other what I call, “pro forma” affirmations which are more than likely being “sold” by unscrupulous persons to asylum seekers to file with their Form 86.  Some applicants have admitted they have paid some money to a “man/friend/brother” for their affirmation.  Some have supplied his details to the court.

28.  In ground 3, the applicant alleges the Immigration Department letter relating to the BOR 2 risk dated 15 November 2016 inviting him to submit additional facts and information if he wished, was too technical and he did not understand it. This was despite it being translated to him. He did reply to acknowledge receipt of it, thinking that was all that what was required. He was unaware it was an invitation to submit further facts. It was grossly unfair that a decision was made without a supplementary interview and an opportunity for him to explain himself further. He was hampered by an inability to understand the contents of the letter.

29.  However, during the hearing before me the applicant admitted that he was not in fact prejudiced in any way because he had had no further information to submit to the Director to support a claim under a BOR 2 risk ground. There was no merit in this ground.

Conclusion

30.  The application for leave is refused. 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. In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.