Singh Popinder v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL414/2017
[2018] HKCFI 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 414 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who entered Hong Kong on 10 December 2013 and had permission to remain as a visitor for 14 days.  However, he did not leave and overstayed from 25 December 2013.  He was arrested by the police on 14 January 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 7 April 2016 and 24 January 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.  He then filed a notice of application for leave to apply for judicial review on 17 July 2017.  The applicant requested an oral hearing which was set down for 10 November 2017 and he appeared in person.

2.The basis of the applicant’s claim was that if he were to be refouled to India he would be harmed or even killed by his uncle because of a land dispute.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.  The applicant was born in 1990, had 16 years of education, was single and had never worked before leaving India for Hong Kong.  The applicant comes from a middle-class landowning family.  His grandfather owned land which he transferred in equal shares to his two sons.  In 2002, the applicant’s father left India to work in the United Kingdom.  His uncle then questioned whether the applicant’s father should retain ownership of his 50% of the land.  The applicant was living on the land at the time with his family.

3.In October 2012, the applicant’s uncle visited the applicant’s home and invited his older brother to drink with him outside.  The family found him dead the next morning and it was confirmed he had been poisoned.  They suspected the uncle but were afraid to report him to the police because he was a politically connected man.  Six months later, the uncle came again and demanded the applicant and his mother surrender the land to him.  They refused and accused him of murdering the elder brother.  He hinted to the applicant’s mother that she may lose the applicant as well if she did not agree to transfer the land.

4.Several months after this incident, the applicant was beaten up by several men he recognised as associates of his uncle outside his college.  They told him to give up his land.  His mother advised him to leave for his maternal grandparent’s home about 50 km away.  About a week later the applicant saw his uncle approaching with some men but he managed to escape through the back door.  His grandparents were warned not to hide the applicant. His family then made arrangements for him to leave India and on 8 December 2013 he flew from New Delhi to Macau via Bangkok.  His mother has told him that his uncle continues to ask about his whereabouts frequently and harasses her about the land.

5.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”).

6.The adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing on 13 March 2017.  The applicant elected to answer questions.  In his decision he correctly sets out the law and key legal principles for the four applicable grounds.  He also set out the applicant’s evidence given in statements and interviews provided to the Director and compares it to the oral evidence of 13 March 2017.

7.The adjudicator identifies stark differences in material facts provided by the applicant over time; he found significant contradictions.  He identified different murder victims, he told the Director that his brother Ranjit was murdered by his uncle but told the adjudicator that his brother Jaswinder was murdered instead.  He even identified different murderers, he wrote in a written representation that his uncle Surjit Singh murdered his brother but later in his non-refoulement claim form he identified his uncle Shankar Singh as the murderer.  He could not name the year of the murder; being unsure if it was 2012 or 2013.  When asked to explain these serious inconsistencies, his explanations were weak and implausible.

8.The adjudicator set out these inconsistencies in his decision as well as others he found material.  He found other significant aspects of the applicant’s claim to be inherently implausible and made them known as well.  He found the quality of the applicant’s evidence meant he completely undermined the centrepiece of his own claim.  The adjudicator found he was not a witness of truth and attach no weight to his claim. He did not find him a genuine claimant.  Therefore, the applicant failed to demonstrate that he was at any real risk of being seriously harmed if he returned to India and his claim failed in respect of any of the applicable grounds.

9.The adjudicator concluded that the applicant was not at risk of persecution or torture or CIDTP or of a violation of his right to life.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.

11.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”.

12.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.

13.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 because in their view, his appeal had no merit.  I know for a fact their assessment is on a case-by-case basis.  If they refused it was because they felt his appeal had no merit.  This ground is not reasonably arguable.

14.The second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and was too technical for him.  He submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation “so as to avoid jeopardising my rights”.  During the hearing he describes the technical problem as being insufficient time to submit his information.  But when questioned further, he then denied receiving this letter which is contrary to his affirmation.  When asked how he could make reference to it in ground 2 if he did not receive it, he replied that he did not know.  I can find no complaint on this ground made to the adjudicator during the appeal or in his grounds of appeal.  This ground is not reasonably arguable under such circumstances.

15.There is another ground which I think is directed against the Director.  The applicant complains that throughout his claim there was no screening interview by the Director.  He only mentions the interview scheduled for 7 March 2016 which he forgot to attend and for the interview scheduled for the 31 March 2016 he says there was no communication between the duty lawyer service and himself.  He says he was not told that if he failed to attend his claim would be determined solely on the basis of the available information the Immigration Department had in the form of written representations.  A chronology of the process is set out in detail in the Director’s decision and it says since October 2015 a total of six interviews were arranged for the applicant but none of them were attended by him.  Under the circumstances the Director proceeded on the basis of available information including the completed non‑refoulement claim form.  The applicant had been represented throughout this process and I am sure explained of the consequences of failing to attend interviews.

16.What is clear from the adjudicator’s decision is that this ground was not a ground of appeal.  There is no mention of this complaint in the decision at all. His grounds of appeal amounted to a repetition of his earlier claims to the Director.  I am of the view that it is inappropriate to consider leave against the Director under such circumstances.  In any case, the applicant has already utilised the channel of appealing to TCAB.  The TCAB treated the appeal as a rehearing/de novo hearing.  There is no room for judicial review of the Director’s decision.  In any event, there would be no merit in this ground.

17.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 enhance Wednesbury test; it was not Wednesbury unreasonable. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 31^st day of January 2018.

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