Dhiman Jasvir v. Torture Claims Appeal Board
Read the full judgment text of HCAL 246/2015 on BabelCite. This High Court CFI judgment was delivered on 16 February 2017.
1. The applicant was an Indian national. He came to Hong Kong in March 2014 and made a non-refoulement claim. His claim was rejected by the Director of Immigration (the Director) on 20 June 2014. His appeal to the Tortures Claim Appeal Board (TCAB) on 30 October 2014 was dismissed by an adjudicator (the Adjudicator) in a written decision dated 26 February 2015.
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HCAL 246/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 246 OF 2015 _____________________
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________________________ JUDGMENT ________________________ Background 1.The applicant was an Indian national. He came to Hong Kong in March 2014 and made a non-refoulement claim. His claim was rejected by the Director of Immigration (the Director) on 20 June 2014. His appeal to the Tortures Claim Appeal Board (TCAB) on 30 October 2014 was dismissed by an adjudicator (the Adjudicator) in a written decision dated 26 February 2015. 2.By a Form 86 dated 14 December 2015, the applicant made an application for leave to apply for a Judicial Review of the Adjudicator’s decision. As the application was brought out of time, the applicant also applied for an extension of time. 3.Leave was granted by me on 29 June 2016. 4.On 2 September, leave was granted for the Director to join as an Interested Party. The case was set down to be heard on 25 November 2016. 5.At the hearing on 25 November 2016, having been made aware of an assertion by the Chief Immigration Officer LAW Siu Wai Sophia (LAW) that the applicant had failed to report on recognizance on 27 February 2015, one day after the TCAB handed down its decision which was served on him, and had since absconded and gone underground until 11 September 2015, I granted leave to the Director to file an application to set aside the leave I granted on 29 June 2016 and adjourned the hearing to 16 January 2017. Directions were given to parties on the filing of affirmations. 6.On 16 January, I adjourned the case further to 23 January for the applicant to file a further affirmation to explain a fax purportedly sent by him to the Immigration Department prior to a meeting with an Immigration Officer on 11 September 2015. 7.The hearing of the setting-aside application and the substantive hearing were heard together on 23 January 2017. Reasons for the delay 8.In the Form 86 (which was amended but with the section regarding “DELAY” unchanged), particulars were given as follows:
Submission made during the Ex-parte hearing 9.Ms Queenie Lau, counsel for the applicant, submitted that the applicant had acted “very promptly” in applying for Legal Aid around one week after the date of the TCAB’s decision. She submitted that after Legal Aid was granted, both the applicant and his solicitors took appropriate action as detailed in Form 86 (which I have set out earlier). Ms Lau highlighted the difficulties faced by the applicant in obtaining the documents from India. Ms Lau submitted that the applicant pursued his application reasonably, adding that the Court should scrutinize the merits of the applicant for Judicial Review when considering the issue of delay. Evidence of material non-disclosure 10.LAW in her affirmation (para 22) referred to the failure of the applicant to report on recognizance on 27 February 2015 and only reappeared on 11 September 2015. The applicant submitted a written explanation (a copy of which was annexed to LAW’s affirmation (LSWS-9)). The applicant said he was “sorry” and that he did not report since 27 February 2015 because “[he has] no money to take transport” to report. 11.The applicant did not dispute the fact that he had not reported on recognizance during the period asserted by LAW. Rather, in his 3rd affirmation (affirmed with a view to oppose the Director’s application to set aside the leave granted to apply for Judicial Review), the applicant claimed that he was “misguided” by a friend in believing that he did not need to report on recognizance since he had applied for Legal Aid. He said he was not aware that he was “going underground” during that period. He further made an allegation that when he went to the Immigration Department on 11 September 2015 to report that Legal Aid had been approved, he did not understand what the officer was saying in English. That officer wrote something on a piece of paper and he was asked to copy the same on another piece of paper. He did not know what he had written and only knew he had in fact written that he did not attend because he did not have money for travelling when the contents were explained to him. 12.The applicant’s assertion that he was told to copy something written down by an officer on 11 September 2015 was vigorously denied by the Immigration Department. Further, in an affirmation dated 30 December 2016 by a Senior Immigration Officer WONG Siu Kee Benjamin (WONG), Wong referred to the recognizance form (a copy of which was attached to WONG’s affirmation as WSKB-1) signed by the applicant, which clearly stated that the applicant had to report “every alternative Friday” until “this recognizance ceases to have effect”. Wong deposed that the contents of the document had been read over to the applicant in Panjabi. The applicant had also written, in his own writing, these words: “I understand notice was read over to me in Panjabi”. The applicant had also signed the recognizance. 13.Regarding the applicant’s visit to the Immigration Department on 11 September 2015, WONG adduced a fax received by the Immigration Department on 9 September 2015, in which the applicant requested to meet the case officer and provided his contact means. On 10 September 2015 the applicant was contacted and arrangement was made for him to attend on 11 September 2015. WONG deposed that there was no indication to show the applicant was not able to communicate in English. Further, there is no indication that the document exhibited to LAW’s affirmation was a forgery, or that officers of the Immigration Department had put in matters in writing which the applicant did not intend to say. 14.As the contents of the fax sent by the applicant made no mention of Legal Aid, but rather, a request was made to see the case officer for the purpose of renewing his recognizance so that the applicant could receive the International Social Service (ISS) payment again (which had been stopped), and that the applicant had made no reference or explanation in relation to this fax sent by him, he was given a further chance to explain. 15.In his 5th affirmation, the applicant claimed that his friend promised to support him at first, but when the ISS stopped, he thought the payment was linked to the recognizance, so he sent the fax and requested to see the case officer. It so happened that Legal Aid assigned the solicitors on 11 September so he also informed the Director that Legal Aid had been granted to him when he went to the Immigration Department to see the case officer. Submissions 16.Mr Johnathan Chang, counsel for the Director, submitted that the applicant had not come with clean hands at all. The applicant’s assertion that he was misled by a friend was not credible, bearing in mind the contents of the recognizance had been fully explained to him via an interpreter. The applicant had made a serious allegation or suggestion that an officer of the Immigration Department had given him a piece of paper to sign and that the applicant did not know the contents. Mr Chang submitted that the applicant just made up this complaint. 17.Mr Chang further submitted that had this Court been informed that he had gone underground for 6 months, this Court would have made enquires to see whether his having gone underground had any bearing on the assessment for Legal Aid (such as difficulties in obtaining documents from the applicant). 18.Mr Chang submitted that no good reason had been shown for the delay. 19.Ms Lau submitted the non-disclosure was not material. There is nothing inherently improbable in what the applicant claims and he had not come before the court with unclean hands. Further, his failure to answer recognizance did not slow down his Legal Aid application. Although Legal Aid was granted to the applicant on 27 June 2015, nomination of solicitors did not finalised until 11 September 2015. 20.Ms Lau also relied on the fact that the Director did not seek to set aside the leave initially until halfway through the first substantive hearing on 25 November 2016, which she submitted throws light on how material the Director views the non-disclosure. Relevant law 21.The principles on material non-disclosure were summarized by Au-Yeung J in Yau Ka Po v Town Planning Board, HCAL 67/2015, as follows:
Ｍy consideration and decision 22.Having considered all the evidence before me, I find it hard to accept that the applicant was misguided by his friend. Contrary to what the applicant asserted, I understand from the Director that the ISS payment was not linked to the recognizance and the Director did not know why ISS payment was stopped. The recognizance had been explained to the applicant in a language he understands. There is no indication on the form that he could stop reporting at any particular time. 23.The applicant’s claim that he had gone to the Immigration Department on 11 September 2015 to report the fact that Legal Aid had been granted was contradicted by the contents of the fax he had sent to the defendant on 9 September 2015. In that fax the applicant said as follow:
24.There is no mention by the applicant of this fax until query was made by this Court after the disclosure by Wong. It is clear that the main purpose of the meeting was not to inform the Director that Legal Aid had been granted, but to renew his recognizance. At most, reporting to the Director that Legal Aid had been granted was co-incidental on his seeking to renew his recognizance. In fact no effort had been made by the applicant to inform the Director when Legal Aid was granted in June 2015 (though solicitors were only assigned on 11 September 2015). 25.The applicant has not been frank with this Court. He did not inform this Court (nor indeed his own legal representatives) that he had failed to answer his recognizance and had gone to the Director on 11 September to have the recognizance renewed. When it became known that he had gone to see the case officer on 11 September 2015, he said that was for the purpose of informing the Director about the Legal Aid and said nothing about his own request to see the case officer. As the applicant said he thought that his failure to answer his recognizance was linked to the non-payment of ISS (which appears to be a mistaken belief), it is obvious that by the time he sent the fax he must have realized that he had to answer a recognizance, otherwise he would not have asked for a “renewed” recognizance. Yet he chose not to inform the Court of such a matter. I am of the view that the applicant had not come before this Court with “clean hands”. 26.I have already indicated that the applicant had not been frank with this Court. When he was given the opportunity to explain about his visit on 11 September 2015, he said nothing about he himself having sent a fax to request a meeting. Instead, he gave the impression that he went there to report on the granting of Legal Aid only. 27.The applicant’s claim that he did not know what was written in the document he wrote on 11 September 2015 is also not believable. The applicant purportedly gave an explanation why he had failed to answer recognizance: he did not have money to travel. It is hard to envisage that the officer involved somehow had misunderstood him and yet was able to put down a plausible reason on his behalf. 28.I find that there is material non-disclosure by the applicant when he applied ex-parte for leave to apply for Judicial Review. 29.Had I been made aware of his failure to answer recognizance for 6 months when I heard the ex-parte application, I would have looked into the matter of delay more closely. Principles on extension of time 30.On reflection, I am also of the view that more thoughts should have been given to the question of delay during the ex-parte application. 31.It is convenient here to revisit the principles for extension of time. 32.Order 53 Rule 4(1) provides as follows:
33.Section 21K(6) of the High Court Ordinance provides:
34.In AW v Director of Immigration, CACV 63/2015 the Court of Appeal said (at para 26):
35.The Court of Appeal also endorsed the following principles (at para 27 of the judgment):
Application of the principles to this case 36.There is a long delay (almost 10 months after the date of the Decision and well beyond the upper limit of 3 months provided under Order 53, Rule 4(1) of the Rules of the High Court). 37.The fact that the applicant is waiting for the grant of Legal Aid is not a ground to extend time: Re Thomas Lai [2014] 6 HKC 1 at para 48(1). 38.Further, when the applicant was already out of time, after Legal Aid was granted in June 2015, the applicant should have acted promptly. However, it took him three months on the nomination of solicitors. After he finally did so in September 2015, and after his solicitors had obtained the documents from the Immigration Department in October 2015, the application was not lodged until mid-December (more than one month later). The delay is unjustifiable. 39.Although there is no indication that there was any difficulty experienced by the Director of Legal Aid in getting in touch with the applicant during the 6 months when he had failed to answer the recognizance, the applicant’s own solicitors had not been able to contact the applicant on three occasions in October 2015. Clearly the applicant had not been diligent enough to follow up his own case. 40.Such delay obviously prejudiced the good administration in the exercise of effective immigration control in Hong Kong: see Nisa Azizan v Director of Immigration & Anor, HCAL 203/2015. 41.The affirmation of Law explained the position as follows:
42.As merits of the application is a significant matter to be taken into account (though it is not a sole criterion), and since both parties have made their submissions on the merits, I will also deal with the grounds submitted by the applicant. 43.Before I do so, I will set out briefly the background of the applicant’s claim. Factual basis of the claim 44.The applicant was born in India in 1991 and he lived in Nakodar, Jalandhar District, Punjab since birth until March 2013. 45.The applicant supported the Bahujan Samaj Party (BSP) in his area. He was selected as one of the four leaders of the junior wing of the BSP in late 2012 or early 2013. 46.In about January 2013, all four leaders were approached by members of another political party called Shiromani Akali Dal (SAD). Members of SAD tried to convince the four to join SAD. They refused. SAD members threatened the four that they would be killed. 47.In February 2013, after the municipal committee elections of the applicant’s area, the applicant and the other three leaders were beaten up by members of SAD with wooden sticks, leaving the applicant with bruises all over the body. There were police officers nearby but they did not offer assistance during the assault. The applicant and the other leaders did not go to make a report after the assault as he felt the police would not help them. 48.In March 2013, two of the leaders were riding a motorbike when they were hit by a vehicle and were killed. The applicant and the fourth leader reported to the Nakodar police the death threats made by the SAD members but their report was ignored. 49.The applicant and the fourth leader decided to leave their home village. The applicant stayed at the hostel of his school until he finished his exams. He then went to Transport Nagar, Jalandhar. While he was there he was informed by his family that the fourth leader was killed after he returned to his home village. The family also told the applicant that two members of SAD had visited the applicant’s home and said “three have gone, [the applicant] is next.” 50.In October 2013 the applicant went to Samrala Chowk to look for a job but without success. In December 2013 he worked as a junior engineer in a water pump factory in Transport Nagar but he left for Golden Temple in January 2014 after two SAD members located him in Transport Nagar. He came to Hong Kong in March 2014. The Decision of the Adjudicator 51.The Adjudicator considered the applicant’s claim under all three applicable grounds, namely (1) Risk of Torture, (2) Risk of Cruel, Inhuman or Degrading Treatment or Punishment (CIDTP) and (3) Risk of Persecution. 52.The Adjudicator found the applicant’s assertion of suffering bruises during one single incident did not amount to torture or CIDTP. He rejected the applicant’s oral evidence during the hearing before the TCAB that he had suffered “numerous open wounds including those on his knees and chest” during the assault in February 2013. 53.The Adjudicator concluded there was no state consent or acquiescence in the assault or the death threats. The SAD was not part of the Indian government and their members are not acting in an official capacity. The act of aggression was one of hatred harboured by a handful of SAD supporters against the applicant when the applicant refused to join them. The applicant had exaggerated his claim that “the whole SAD” was going after him to kill him. SAD was not the party in power in any event. There was no evidence that the police had acted on the instructions of SAD and there was no mala fides when the police did not make any arrest or investigate in the vehicle incident in March 2013 when the identity of the vehicle driver was not known. 54.The Adjudicator agreed with the Director that the applicant could be relocated elsewhere in India other than his home town so he would not be subjected to any substantial risk of being hunted down or tortured or persecuted by his assailants. Grounds of Review 55.The applicant advances 5 grounds of review:
General principles on Judicial Review 56.It is trite law that judicial review is not a further appeal. The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Director and/or the TCAB in dismissing the Applicant’s claim (a) made any error of law; and (b) handled the claim without compliance with the high standard of fairness as required by the law (as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187). It is also important to bear in mind that while the burden of proof lies on the torture claimant applicant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture, it is subjected to the requirement of “high standard of fairness” that both the Director and the TCAB must observe. What the “high standards of fairness” demand would depend on the circumstances of each individual case but ultimately it boils down to common sense and fairness (see TK v Jenkins & Anor [2013] 1 HKC 526). The determination of a torture claim is a “joint endeavour”, the claimant cannot sit back and require the Director to disprove his claim (see CH v Director of Immigration [2011] 3 HKLRD 101). Ground 1 – Failure to make adequate enquiries into the country conditions of India and to give reasons 57.The applicant complained that the Adjudicator did not assess the effectiveness of the mechanisms or systems in India. Furthermore, the Adjudicator failed to explain why he had said there was no concrete evidence of Country of Origin Information (COI) to support the applicant’s belief when some of them supported the applicant’s case. The applicant also complained that the Adjudicator erred in saying that the corruption in India or India being unsafe are “only background” as they “do not show personal victimisation”. While accepting that the applicant’s personal circumstances are important (as the Court of Appeal stated in Secretary for Security v Prabakar (2004) 7 HKCFAR 187), Ms Lau submitted that the understanding of COI is as important. The Adjudicator failed to appreciate the importance of the COI even though it did not relate specifically to the applicant. My consideration and decision 58.The Adjudicator (in para 21 of the Decision) sets out a summary of the relevant COI he had considered. The materials under 21(a) and (b) include material suggesting that the Indian government did not implement the law effectively, and that officials frequently engaged in corrupt practices with impunity (para 21(b)(ii)). The Adjudicator explained in bracket after each extract under 21(a) and (b) his understanding and conclusion of the COI. 59.In para 22 the Adjudicator said:
60.Although on the face of it, when the Adjudicator said there was no COI to support the applicant’s belief, when in para 21(b)(ii) the Adjudicator had mentioned “corruption was present at all levels of government”, the Adjudicator was contradicting himself, when one reads para 21 and 22 as a whole, it can be seen that the Adjudicator was concentrating on the applicant’s mere assertions in his response to the COI materials, when the Adjudicator invited him to comment. It is clear that the Adjudicator had indeed considered the relevant COI. I do not agree that the Adjudicator had either failed to consider the COI or failed to give reasons as claimed by the applicant. 61.Further, it is not sufficient for the applicant to just claim that corruption is prevailing in India. He bears the burden to show that he is personally at risk. The existence in India of “a consistent pattern of gross, flagrant or mass violations of human rights” (even if proved) alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country: See TK v Jenkins & Anor [2013] 1 HKC 526. As Ms Lau conceded, the COI does not relate specifically to the applicant. The available evidence and COI material did not show that the applicant was personally at risk. 62.This ground fails. Ground 2 – Failure to consider medical evidence 63.The main crux of the complaint was the Adjudicator’s failure to consider medical evidence of injuries found on the applicant when the applicant underwent a health screening upon reception on 21 March 2014. 64.According to the Note at the last page of the applicant’s non-refoulement claim form, it was stated:
65.The applicant complained that the Adjudicator did not make any reference to this piece of evidence, which was crucial to support the applicant’s claim that the injuries he sustained were serious when the injuries were still identifiable during the health screening in 2014. My consideration and decision 66.Although the Adjudicator did not mention the Note on Health Screening, since it was part of the applicant’s non-refoulment claim form (inserted by handwriting) before the Adjudicator, it is hard to see how the Adjudicator would have overlooked it. 67.It is unclear what injuries there were on his knees or chest when he underwent the screening. Just because injuries were identifiable does not mean that the injuries sustained by the applicant were serious. One must remember when the applicant made his claim, and particularly when he was represented by a Duty Lawyer and with the assistance of an interpreter, his evidence was that his injuries were not serious: he was beaten by wooden sticks; he received herbal treatment; he was given ointment to apply and told to drink milk mixed with turmeric for his internal injuries; he recovered after a week; he went for treatment for two times and he drank milk with turmeric regularly for one month. 68.Before the Adjudicator, the applicant mentioned for the first time he had suffered “numerous open wounds including those on his knees and chest” when in the Non-Refoulment Claim form the applicant had clearly stated “fortunately there were no open wounds”. Under the circumstances, the Adjudicator was entitled to reject the applicant’s claim before him as being incredible. The absence of any mention of the Health Screening does not indicate that there was any error on the part of the Adjudicator in relation to the medical evidence. 69.This ground fails. Ground 3 – Errors regarding state acquiescence 70.The applicant complained that there are numerous problems with the Adjudicator’s decision. Ms Lau submitted the Adjudicator erred in stating and placing weight on the fact that the applicant “does not say he is relying on the concept of extended acquiescence”. Ms Lau submitted that the applicant was raising such a case whether he had used the terminology or not. 71.Ms Lau also submitted that the Adjudicator erred in dismissing the applicant’s reason for not going to the police after the assault in February 2013. The Adjudicator said there was no evidence of acquiescence, and the reason why the applicant did not go to the police (that the police were siding with SAD) was the applicant’s thought only, and was not evidence of fact. Ms Lau pointed out that the applicant did mention police were nearby when the assault took place and no assistance was offered by the police. So it is incorrect for the Adjudicator to say that there was no evidence. 72.Ms Lau also relied on her submission under Ground 2 in relation to the Adjudicator’s consideration of the COI materials. My consideration and decision 73.I have already dealt with Ms Lau’s submission on the Adjudicator’s consideration of the COI material under Ground 2. 74.Reading the Decision as a whole, it can be seen that although the Adjudicator stated the fact that the applicant did not say he was relying on state acquiescence, it is incorrect to say that the Adjudicator had not considered this issue. The Adjudicator had considered COI materials (which indicated that the Indian government does not tolerate corruption and that SAD members are not treated preferentially). The Adjudicator is entitled to conclude that there is no evidence of any failure of due diligence by the state, or how such a failure would subject the applicant to the risk of torture or CIDTP or persecution by the state or any official authority of the state. 75.Bearing in mind what the applicant had said about the police presence: “[a]ctually, some police officers were nearby when the attack began. None of them offered any assistance at the scene. It was because they knew the political affiliations of the attackers”, in particular the applicant’s opinion of why the police did not assist, it is understandable the Adjudicator formed the view that the applicant’s failure to report was merely based on his “thought”. 76.There was no elaboration of what “nearby” meant and what was actually witnessed by the police officers, particularly when the police appears to be only present at the “beginning” of the attack. 77.I see no fault in the Adjudicator’s way of dealing with the COI materials to come to his conclusion. 78.More importantly, as mentioned under Ground 1, the applicant cannot show that he is personally at risk. 79.This ground fails. Ground 4 – Failure to consider mental suffering caused by the death threats to the applicant 80.The complaint was that death threats featured prominently in the applicant’s claim and yet the Adjudicator did not explain why a death threat cannot amount to mental suffering to the requisite level of severity. My consideration and decision 81.It is important to note that the applicant never claimed that he had suffered any mental suffering. He himself concentrated only on the physical injuries he suffered. If he had suffered mentally, it is hard to believe that he would have failed to inform the Director (when he was legally represented) and the Adjudicator (when he acted in person). The fact that the applicant was able to continue to study and finished his final exams, and that he was able to hold a job before coming to Hong Kong, also undermine the applicant’s belated claim of severe mental suffering. 82.This ground fails. Ground 5 – Errors in respect of internal relocation 83.The complaint was that the Adjudicator did not make his own independent decision during the appeal (which was a re-hearing) about the issue of internal relocation. He relied on the Director’s decision and tried to see whether he could find any fault. He also did not explain why he accepted part of the COI materials listed by the Director and failed to have regard on those COI materials which corroborates the applicant’s claim. My consideration and decision 84.Whilst an appeal is by way of re-hearing, I do not find anything wrong with the Adjudicator agreeing with the views of the Director, having independently considered the issues himself. 85.As mentioned earlier, the Adjudicator had considered the relevant COI materials. 86.The Adjudicator did not err in dealing with this issue. 87.This ground also fails. Conclusion 88.Having come to my conclusion that there is no merit in the applicant’s application for Judicial Review and having considered the length of delay, the lack of good reason for the delay, the material non-disclosure, the prejudice to the Director in the exercise of effective immigration control in Hong Kong and the absence of any general public importance, I order that the leave originally granted to the applicant to apply for Judicial Review be set aside. I also refuse to grant leave (again) to the applicant to apply for Judicial Review. Costs Order 89.I make the following Nisi Costs Order, to be made absolute should no application to vary be made within 14 days:
Mr Johnathan Chang, instructed by the Department of Justice, for the interested party The respondent was not represented and did not appear Ms Queenie Fiona Lau, instructed by M.C.A. Lai Solicitors LLP, assigned by the Director of Legal Aid, for the applicant | ||||||||||||||||||||||
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