REKHI NAVDEEP SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 390/2018

[2019] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 390 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 1st and 2nd Applicant in open court and the 3rd and 4th Applicant being absent;

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The applicants are husband and wife and their two children, all of Indian nationals who arrived in Hong Kong on 13 February 2015 with permission to remain as visitors up to 27 February 2015 when they did not depart and instead overstayed until 3 March 2015 when they surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by a man in revenge for the death of his daughter in a traffic accident in which the 1^st applicant was involved.  All the applicants have since been released on recognizance pending the determination of their claim. 

2.  Prior to their arrival in Hong Kong the applicants lived in Kolkata, India where the 1^st applicant (“A1”) worked as a driver while the 2^nd applicant (“A2”) was a housewife looking after the 3^rd applicant and 4^th applicant (“A3” and “A4”) who were school children.

3.  One day in December 2012 while driving in Kolkata A1’s car collided with the car from the opposite lane driven by BN that A1 suffered a head injury and was hospitalized for several days during which he was told that one of BN’s daughters who was in his car had died in the accident.

4.  After his discharge from the hospital A1 started to receive threatening phone calls from BN who blamed him for his daughter’s death and swore to take revenge against him and his family.  Although A1 had reported the threats to the police, no action appeared to have been taken against BN as he was an important member of the political party All India Trinamool Congress (“TMC”) and A1 suspected that the police were under his influence.

5.  A1 therefore became concerned for his own safety and his family’s and therefore quit his job and moved his family to his mother’s home in Punjab, where they stayed without further incidents until early 2014 when he received a telephone call from a member of the ruling party in Punjab that BN had enlisted his help to track him down and threatened that he and his family would be killed wherever they were hiding.

6.  One day in late 2014 whilst A1 was riding his motorcycle in Punjab, he was intercepted by several vehicles and was attacked by the men from those vehicles but managed to escape unhurt when some passers-by intervened.

7.  After the incident A1 continued to receive threatening calls from BN’s friend that there would be no escape from BN’s revenge, he therefore moved his family to New Delhi where he decided that it was no longer safe for him and his family to remain in India, and so they departed on 13 February 2015 for Hong Kong where they overstayed and subsequently raised their non-refoulement claim, for which they completed a Non-refoulement Claim Form on 30 August 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

8.  By a Notice of Decision dated 17 October 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of harm from BN and his associates upon their return to India due to the low intensity and frequency of past ill-treatment from them, that the applicants had not suffered any pain or suffering or injuries inflicted by BN that may have attained the minimum severity under any of the applicable grounds, that their dispute with BN was a private personal matter without any official involvement that state or police protection would be available to them 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 A1 as an able-bodied adult with work experience to move with his family to other parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for BN and his associates to locate them.   

10.  On 28 October 2016 the applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 20 November 2017 before the Board during which A1 gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 February 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the applicants’ evidence and account of past events in India vague and evasive, that they were internally incoherent and inconsistent with their previous claim on material points and were manifestly false, with the most serious problems with the evidence being the substantial material and central differences between what were previously said to the Director and what were said in evidence before the Board, that such discrepancies in their account were absolutely fundamental and fatally undermined their assertions, and concluded that they were not witnesses of truth and that nothing they had told the Board can be given any credence whatsoever that the applicants’ claim failed on all applicable grounds.   

12.  On 12 March 2018 the applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1)  lack of legal representation for their appeal before the Board;

(2)  lack of language assistance to assist them in their appeal to the Board; and

(3)  failure on the part of the Director to give proper explanation for rejecting their claim under BOR 2 risk and for failing to consider the relevant COI as to the real risk of their facing the prospect of torture, cruel inhuman or degrading treatment and punishment in India in the assessment of their claim.   

13.  For their complaint in Ground (1) of not being provided legal representation in their 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.

14.  The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in the appeal hearing before the Board and to answer questions from the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

15.  As for the complaint under Ground (2) of not being provided with language assistance in their appeal, it is clear that they were assisted by an interpreter at their appeal hearing before the Board, and in the absence of any particulars or specifics to demonstrate that the basis of their claim had not been properly interpreted or that it had been wrongly understood by the Board, I find this complaint of the applicants simply speculative and without basis.

16.  Regarding their Ground (3) it is plainly wrong for the applicants to claim that no explanation was given by the Director in rejecting their claim under BOR 2 risk, which the Director clearly did in paragraphs 34 – 39 of his decision explain his reasons for rejecting their claim under BOR 2 risk.  A close examination thereof again reveals no basis for this complaint of the applicants.

17.  As for their complaint over the Board’s reliance of COI in its assessment of their claim, again the applicants failed to provide any particulars or elaboration in support of this complaint, and upon close examination of those COI referred to in the Director’s decision and its appendix, I again find no basis or merit in this complaint of the applicants.

18.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.  In the applicants’ case, the Board rejected their claim based on its adverse findings on A1’s credibility with thorough and detailed analysis and reasons set out in paragraphs 23 – 38 of its decision after having had the benefit of hearing him in evidence and his answers to questions raised by the adjudicator at the appeal hearing, and in the absence of any legal error or procedural unfairness clearly and properly identified by the applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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