Vikas v. Director of Immigration and Another

HCAL 185/2017

[2018] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 185 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 30-year old Indian male who entered Hong Kong on 28 August 2013 with permission to remain as a visitor until 11 September 2013, but he overstayed and was arrested by the police on 7 November 2013 and was referred to the Immigration Department for investigation on the following day.  On 9 November 2013 he raised a torture claim and sought non-refoulement protection with the Immigration Department on the ground that he would be harmed or killed by his relatives over a land dispute if he were to return to India.

2.The applicant’s case is that he was born and raised in Neelpur, Teh Rajputa, District Patiala in India where his father owned a large piece of farmland that and before he died in 2008 he verbally transferred the land to the applicant and his two brothers in equal shares. The applicant had worked in this land together with his brothers as well as the two sons M and D of his paternal aunt.

3.In about mid-2012 the applicant wanted to leave home to live elsewhere and proposed to sell his share of the farmland to his brothers but was ignored, and when he then suggested to sell to some outsiders he was told by his aunt not to do anything.  Then one day in early 2013 when he again mentioned about wanting to sell his land, his aunt’s sons M and D scolded him and then assaulted him causing bleeding to his forehead until they were restrained by the others.  After he was taken to a clinic for treatment to his injury, the applicant reported the assault to the police but they failed to take any action.  The applicant then went into hiding in his friend’s home in Chunna Bhathi several kilometers away from his village for several months.  Eventually he returned home in mid-2013 but two months later he ran into M and D with some other men who demanded him to give up his land to them, and when he refused they started hitting him until being restrained by the police.  When the applicant returned home he was advised by his mother that it was no longer safe for him to remain in Neelpur, so he went into hiding in Patiala where he formed the decision to leave India for his own safety, which he did on 25 August 2013 arranged by an agent and arrived in Hong Kong on 28 August 2013 as noted above.         

4.After having raised his non-refoulement claim, the applicant eventually completed his Non-refoulement Claim Form on 4 September 2015 with legal assistance under the Duty Lawyer Service and was advised and assisted by a Duty Lawyer when he was interviewed in connection with his claim which was then assessed by the Director of Immigration (“the Director”) on all applicable grounds including torture risk 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, 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”).

5.By a Notice of Decision dated 16 October 2015 the Director rejected his claim after assessing that the risk of harm that he may face was small based on his bare assertion unsupported by any documentary evidence, that in the absence of any involvement of the state or government the dispute he had with his cousins was a private and local one, that police protection was available to him, and that on objective COI internal relocation would be available and reasonable in his circumstances for him to return to live and work safely in India elsewhere from his home village.

6.By a Notice of Further Decision dated 6 January 2017 the Director further assessed the applicant’s claim under Article 2 of the Hong Kong Bill of Rights including right to life (“BOR 2 Risk”) and again rejected his claim after receiving no further or additional facts or information from him relevant to his claim under BOR 2 Risk when he was invited to do so by their earlier letter dated 15 December 2016.

7.By then the applicant had already filed his appeal to the Torture Claim Appeal Board (“the Board”) which he did on 26 October 2015, and as the Director’s Notice of Further Decision was issued more than 14 days before the scheduled oral hearing before the Board on 17 February 2017, the Adjudicator decided to consider the applicant’s appeal on all applicable grounds including BOR 2 Risk at the hearing, during which the applicant gave evidence, answered questions put to him by the Adjudicator and made further submission.

8.On 23 March 2017 his appeal was dismissed by the Board which similarly found his non-refoulement claim to have failed on all applicable grounds and confirmed the Director’s decisions.  The Adjudicator who heard the applicant in evidence stated in the Board’s decision that his credibility is questionable as he appeared to be a reluctant witness, that on the totality of his evidence the Adjudicator was not persuaded even to the low standard required that he has given a truthful account of events in relation to the land before he left India, that none of which were supported by any other credible evidence, therefore no weight could be given to his evidence in his claim, and that even taking his own evidence at its height the Adjudicator found that his claimed fear of serious harm or ill-treatment arose only from an internal family land dispute, and that the he failed to establish that there is a real chance that he will suffer such harm or ill-treatment of any sort if he is refouled to India.      

9.On 5 May 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 the applicant set out his grounds which can essentially be summarized as follows:

(a) that he never received the letter from the Immigration Department inviting him to submit additional facts relevant to his claim for non-refoulement protection under BOR 2 Risk and hence he has been deprived of the opportunity to do so;

(b) that he was not explained during the oral hearing of his right to submit additional facts or information on BOR 2 Risk;

(c) that there are errors in law when decision maker took into account of irrelevant facts and was bias against him in considering the COI and in determining that internal relocation would be available and that it would be safe for him to return to India.  

10.The first two grounds can be considered together.  Even assuming that indeed the applicant never received the letter of 15 December 2016 from the Immigration Department inviting him to submit additional facts relevant to his claim not just on BOR 2 Risk but also any other applicable grounds, and that he did have those additional facts, he had full opportunity at the oral hearing on 17 February 2017 to do so to advance his case including on BOR 2 Risk before the Board, which was clearly also what the Adjudicator had intended to consider his case under that risk as well as he so stated in the decision, but as the applicant ended up failing to do, and has failed to give any explanation as to why or what additional facts that he may have, bearing in mind of the fact that he had had legal assistance and representation under the Duty Lawyer Service, and that the burden rests on him to prove that there are substantial grounds for believing that he would be in danger of such risk.  As such I am simply unable to see any ground for these complains of his.

11.As for the remaining ground, and in the absence of any specifics or particulars from the applicant, and with rigorous examination and anxious scrutiny, I am unable to find any error in law or procedural unfairness in the assessment by either the Director or the Board of the applicant’s claim, or any bias on their part in determining the issue of internal relocation based on objective COI available to the applicant, or any failure on their part to apply a high standard of fairness in the process. Again I see no merits in this ground of the applicant. 

12.In the premises and for the reasons given, I am not satisfied that the applicant’s intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.

Dated the 8th 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