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

HCAL361/2017

[2018] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 361 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 arrived in Hong Kong on 15 April 2015 but was refused permission to land at the airport.  However, he raised a torture claim application through a legal representative who was there to meet him at the airport.  That torture claim became a claim for non-refoulement protection under the USM and was assessed on all applicable grounds by the Director of Immigration (“the Director”) before it was rejected on 26 June 2015.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 9 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 5 July 2017 and requested an oral hearing which was set down for 27 October 2017.  He appeared in person at the hearing.

2.The basis of the applicant’s claim was that if he were to return to India he would be killed by two men, Nirmal Singh and Sarabjit Singh because he believed they wanted to take over his land.  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.

3.The applicant was born in 1985, received eight years of education, farming his own farmland for a few years before working in a blanket factory.  He is married with a son.  The applicant is the only surviving son of the family; his two brothers died in 2000 and 2007.  The applicant’s family own a large piece of agricultural land in his village.  The two Singh brothers own land adjacent to his which was significantly bigger but the applicants was closer to the road.

4.The applicant says the Singh brothers were politically connected and on good terms with the local police because they paid bribes.  In around 2007, the applicant’s elder brother was knocked down and killed whilst riding a motorbike.  He was knocked down by tractor driven by one of the Singh brothers.  Although it was concluded it was an accident, the applicant believed it was intentional as the road was very wide where the accident happened.

5.The applicant’s father was shot dead whilst he was driving his tractor by the same Singh brother who was with his brother and father at the end of 2010 on their own farmland.  Even though a police report was made, the applicant was told by the police that nothing would happen even if the perpetrators were arrested.  The Singhs were brought to court and bailed out.  The applicant was told by his uncle that a bribe of 1.2 million Indian rupees were paid to secure their release.  The applicant and his family tried to find out why they were released but the police failed to give them a satisfactory answer.

6.The applicant strongly believed his brother was also murdered and his father was shot because the Singhs wanted their land.  The applicant stayed away from their family farm land and went to work in a blanket factory from the time his father was murdered.  Even then, whenever he saw the Singhs they would verbally abuse him about once a week.  They said if he did not leave the village they would kill him.  They claimed that the land belonged to them.

7.At the end of 2014 the applicant did return to the farm land with several family members to start farming again as his wife was not well.  The Singhs came with unknown men and abused him for trespassing on their land; they attacked the applicant and his family with wooden sticks.  The applicant and his family members managed to escape and receive hospital treatment.  He tried to report this to the police but was ignored.

8.In February 2015 the applicant received daily threatening phone calls from Nirmal Singh.  He said he would kill the applicant like his father had been killed.  The applicant was scared and moved with his wife some 80 km away to stay with an uncle.  He changed his phone number but the Singhs managed to obtain his new number and continued to call him.  One day, the Singh brothers and three men turned up at the home of his uncle and attacked him and his wife with wooden sticks, threatening to kill them.  Only their neighbours stopped the assault.  That night his uncle advised him to leave India.  His uncle could only afford to send one of them and as his wife was sick, the applicant went to Hong Kong.

9.The adjudicator, as did the Director, analysed the applicant’s claim under three 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”); and

(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”).

10.The adjudicator of the TCAB treated the appeal/petition as a rehearing.  He arranged for an oral hearing to be conducted and the applicant had the assistance of an interpreter.  The applicant had nothing to add at the hearing but did clarify certain matters raised by the adjudicator.  The adjudicator correctly set out the law and key legal principles relevant to the three applicable grounds in his decision.

11.He set out the applicant’s case gleaned from the non-refoulement claim form and his screening interview.  It appears he accepted the applicant’s evidence as the truth and proceeded to assess his claim on that basis.  He found this to be a private land dispute with no State actors involved that had been on-going for years.  The adjudicator considered the applicant’s suspicions about his older brother’s death.  He also considered that the applicant had worked in a factory for four years and bumped into the Singhs almost weekly but had come to no harm.  He was attacked and injured on several occasions but his injuries were relatively minor considering they were at times armed with sticks and could have inflicted much more serious injuries.

12.The adjudicator did not believe the applicant’s evidence that he had spoken to his wife recently and she had been attacked three to four times while staying with her parents because the first time he mentioned this was at the end of the appeal hearing and not initially at the beginning.  He was unable to give any details of the attacks such as who was involved, where they occurred and what injuries she suffered.

13.The adjudicator did consider the applicant’s allegations of police corruption and said he considered the Country of Origin material.  He accepted that India had endemic problems with corruption in the police force.  He noted the material referred to were recent and mentioned ongoing efforts to improve the corruption with programs.  There is no specific reference to what Country of Origin material has been referred to by the adjudicator in the decision in reaching those conclusions and opinions objectively.  This lack of detail would attract fair criticism.

14.As far as the persecution risk was concerned, he found the applicant’s fear arose from a dispute with his neighbours, the Singh brothers and it was private and personal in nature.  He could not demonstrate he was at real risk of persecution because of a Convention reason meaning either because of race, religion, nationality, membership of a particular social group or political opinion.  His persecution risk claim failed.

15.The applicant was unable to invoke the protection of BOR 3; the adjudicator found the applicant had not shown that there were substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of torture and CIDTP.  As far as the BOR 2 risk is concerned, there was no suggestion that his rights under BOR 2 would be violated.

16.Lastly, his claim and evidence did not amount to torture as defined by Section 37U(1) of the Immigration Ordinance.  It was a personal dispute and there was no suggestion that the incidents described by the applicant involved any State actor acting in an official capacity.  He was able to leave India without encountering any problems and there was no suggestion that the government had any interest in him at all.  The torture risk claim failed.  The adjudicator confirmed the decision of the Director.

17.The adjudicator did consider internal relocation; even if the applicant had been able to show that he faced a real or genuine risk of harm, it would have been confined to the local area where he and his family lived.  Therefore, according to the Country of Origin information the adjudicator considered relevant, the applicant being young enough with work experience in a factory and on a farm, he would have been able to relocate internally without undue hardship in other big cities in India such as Mumbai or Delhi.

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/miscarriage of justice;

(2) the lack of language assistance given to him/inability to read Immigration Department letter/procedural unfairness; and

(3) lack of communication/no letters received.

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 appeals if they are of the view there is merit in their cases.  Their assessment is on a case‑by‑case basis.  The applicant agreed during the hearing that he did approach the duty lawyer service again and they declined to continue to assist him because they were of the view that his appeal had no merits.

22.The second ground is a complaint that the applicant had no language assistance with his appeal and his reply to the Immigration Department with regard to their invitation to submit further information relating to his BOR 2 risk claim.  There were no further particulars.  The submission is the applicant should be entitled to the services of an interpreter provided by the government during this process.  Without more, this sweeping submission is of no assistance to this complaint.  There is no merit in it nor is it reasonably arguable.

23.Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for him to understand which meant he did not have a fair chance to provide further information leading to the Director issuing the Notice of Further Decision on 25 October 2016. This Notice of Further Decision from the Director always relates to the BOR 2 risk as the last applicable ground if it has not been considered initially.  After several questions from the court relating to this letter of invitation to supply further information, he agreed he did receive one and he agreed he did not reply in time to this letter (there is always a time limit of 14 days) because he had lost contact with all his family in India; it was not because he had insufficient time to apply.

24.The only reference to the Notice of Further Decision by the Director rejecting the applicant’s BOR 2 risk is in the applicant’s affirmation at para 8; he says the notice is dated 25 October 2016.  The adjudicator makes no reference to this Notice nor deals with the BOR 2 risk ground in his decision.  His decision, the rehearing of the applicant’s claim does not cover BOR 2 risk.  The applicant makes no reference to this in his affirmation.

25.Ground 3 rather oddly, completely contradicts ground 2 as well as his answers given during the oral hearing. Here the applicant says he heard through word-of-mouth that there was another additional applicable ground, the BOR 2 risk ground and he should have received a letter from the Director inviting him to submit further information if he wished.  He never received one.  He was told the letter was highly technical.  He did not receive the letter that should follow it, the Notice of Further Decision.  He says the Director made no attempt to ensure he received those letters.  Since what he told the court contradicts this ground, there is no merit in it. To date, there is no confirmation the BOR 2 risk has been dealt with or appealed if it was rejected.

Conclusion

26.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.  The application for leave is refused.

Dated 9^th day of February 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