GURBACHAN SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 893/2017

[2018] HKCFI 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 893 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 national of India who arrived in Hong Kong on 9 November 2013 with permission to remain as a visitor up to 23 November 2013 when he did not depart but instead overstayed until 2 December 2013 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 5 December 2013 on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Kirpind, Tehsil R.S. Pura, District Jammu and Kashmir, India.  After leaving school he worked in his family’s farmland owned by his grandfather.  In December 2011 his grandfather divided his farmland into three equal lots and gave one lot to each of his three sons being the applicant’s father and his two uncles.  However, one of his uncles BS who was an important and influential member of the political party Congress Party (“CP”) in the village was not happy with his lot as the applicant’s father’s lot was adjoining the main road and hence of higher value which had led to frequent conflicts between the two of them.

3.  In January 2013 due to his health condition the applicant’s father transferred his share of the land to the applicant who had since become the target of threats and harassments from his uncle BS and his fellow CP supporters.  In June 2013 the dispute escalated when BS with two of his men assaulted the applicant by slapping and punching him after he refused to sell his land to him who then threatened to kill him next time when they met and if he still refused to sell his land to him.

4.  One day in October 2013 when the applicant ran into BS on the street, BS again demanded that the applicant sell his land to him and again uttered threats to kill him when the applicant refused.  A week later BS brought several men to assault the applicant while he was working on his farm land by holding him down and chopping off some of his fingers with a knife, and they only stopped when some of the farmers nearby heard the applicant’s scream and came to his aid, but before he left BS threatened the applicant that next time he would be killed.

5.  After the applicant was taken to the hospital for treatment, the police came to investigate and the applicant reported the assault to them, but he suspected that it would not lead to any investigation as BS was an influential man in the village, and as his father started to become worry for his safety, the applicant was advised to stay elsewhere to avoid his uncle, and so the applicant took shelter at his friend’s place at New Delhi for several weeks without any incidents, but when he was told by his father that BS had been looking everywhere for him, the applicant decided to leave Pakistan and on 7 November 2013 he departed first for Macau and then to Hong Kong on 9 November 2013 where he subsequently overstayed and raised his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 13 October 2015 with legal representation from the Duty Lawyer Service, in which he stated that he heard from his father that BS had since his departure occupied his land and was still looking for him to sign the formal transfer to him.

6.  By a Notice of Decision dated 26 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all 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 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”).

7.  In his decision the Director found that the applicant’s uncle having already occupied his land has no further reason to harm or kill the applicant and hence the risk ofharm from him was assessed as small and a localized one, that their dispute was a private family matter and in the absent of any evidence of any involvement of the state or the police that state protection would be available to the applicant if resorted to, and that 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 be impossible for his uncle to locate him in areas away from his home district such as Guwahati in Assam that it would not be unduly harsh for the applicant as an able-bodied adult with working experiences to safely relocate without any risk of harm from his uncle.

8.  By a Notice of Further Decision dated 3 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation 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”).

9.  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 5 August 2016, and for which he attended an oral hearing on 4 October 2017 before the Board but declined to answer questions put to him by the adjudicator or to engage in any discussion or defense of his claims, insisting that he could not remember those events and that he did not want to say anything else as he had already given his statement earlier to the Director.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board for its detailed analysis in paragraphs 40 – 60 found the applicant’s evidence available before it vague, confused and inconsistent, and concluded that it has no confidence in accepting that his evidence about what occurred to him in India was based on his personal or actual experience and considered that it was fabricatedto create a claim to be owed protection, and that there are no substantial grounds to believe that he faces a real risk of being subjected to any harm if he returned to India, and that his claim for non-refoulement protection on all applicable grounds is not substantiated.

11.  On 16 November 2017 the applicant 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 set out his grounds for his intended challenge as follows:

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

(2)  lack of legal 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;

(3)  failure on the part of the Director to provide him with assistance for submitting additional facts relevant to BOR 2 risk and for rejecting his claim without proper reason or explanation;

(4)  wrongful exercise of case management power on the part of the Board for failing togive proper weight on his hand’s injuries in the consideration of his claim and forwrongful reliance on COI in assessing malpractice of police and law enforcement in India; and

(5)  lack of fair hearing for not requiring the attendance of the Director at his appeal hearing before the Board and for failing to give any reasons for not doing so.   

12.  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.

13.  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.

14.  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 merit.

15.  Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which theDirector clearly did in paragraphs 3 – 5 and 7 of his Notice of Further Decision in that theadditional facts and document provided by the applicant were properly considered by the Director with reasons given for the rejection of his claim under BOR 2 risk.  There is simply no merit in this ground of the applicant.

16.  As for ground (4) in which he complains that the Board did not give proper or sufficient weight in his hand’s injuries when considering his claim, I find that the Board in fact did so as evidenced in paragraph 55 of the decision when the adjudicator did take into consideration of the documentary evidence including photographs provided by the applicant and accepted that he did sustain injuries to his hand and arm, but found that they did not provide independent corroboration that the injuries were sustained in the manner claimed by him or that his uncle or his men were responsible for inflicting those wounds, and that having found the applicant to be an unreliable witness the Board therefore did notaccept that those documentary evidence provide independent corroboration of any aspectof his claim, and therefore placed no weight on them as corroborative evidence supportiveof his claim, something which the adjudicator was entitled to do so as the primary decision- maker having the benefit of hearing the applicant in the evaluation of all the evidence before the Board, and I do not find any merits in this complaint of the applicant.

17.  Regarding his complaint under ground (5) 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.

18.  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 applicant’s claim.

19.  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