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

HCAL393/2017

[2018] HKCFI 288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 393 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 first arrived in Hong Kong on 2 October 2014 but was refused permission to land and removed to Bangkok on the following day.  On 15 October 2014, he arrived in Hong Kong from Macao and made a non-refoulement claim by written representation indicating that his life was at risk from his girlfriend’s brother who disapproved of his relationship with her.  Two days later, he withdrew that claim stating his problem had been solved and was removed to Macao that same day.  On 3 August 2015, the applicant was arrested by the police for illegally remaining in Hong Kong.  He claims to have entered Hong Kong illegally from mainland China on that same day.

2.He lodged a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 18 April 2016 and 23 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 29 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017 and requested an oral hearing which was set down on 10 November 2017.

3.The basis of the applicant’s claim had nothing to do with his girlfriend, her family and his first withdrawn claim; he believed that if he were to return to India he would be harmed or even killed by members of the Shromni Akali Dal party (“SAD”) the ruling party because he refused to leave his party, the Indian Congress Party (“INC”) and join the SAD. Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore I only intend to summarise it here.

4.The applicant became an INC supporter from the age of 18, helping to organise rallies, putting up posters and electioneering before elections.  One day in February 2015, a senior and influential member of SAD, Avatar Singh, approached the applicant and asked him to become a major member of SAD but he refused him.  This was because he inspired a lot of people to vote for the INC.  About five days later, Avtar Singh approached him again with three men armed with daggers and repeated the request; when the applicant refused they threatened to kill him before pushing him several times.  He then ran away.  He made a report to the local police station but was laughed at by several police officers when they heard Avtar Singh’s name.  They refused to register his complaint.  He did not report it to another station or any higher authority.

5.The applicant’s father then approached Avtar Singh but he was told the applicant would be killed if he did not join SAD.  Father and son then tried to report the matter again to the police station; this time a police officer wrote down the complaint but they do not know if it was investigated or if anyone was arrested.

6.Two days later, the applicant was again approached by Avtar Singh and four to five men armed with daggers and pistols who beat up the applicant.  He suffered bruising to his knees and back, a cut lip and a tooth was broken.  He received treatment at a clinic, his lip was stitched; he could not walk for a week and took 20‑odd days to recover.  The applicant did not report this attack to the police as he felt it would be futile.  Fearing another attack, he moved to live with his aunt in Rajasthan in April 2015 for three months.  He then moved to another aunt’s home in the Punjab for another month.

7.He was then told by his mother that Avtar Singh knew of his whereabouts so he decided to flee to Hong Kong.  He left using his own passport without any difficulty through immigration.

8.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”).

9.The adjudicator treated the appeal as a rehearing and conducted an oral hearing on 2 May 2017.  This date was before the Director’s Notice of Further Decision dated 23 June 2017 relating to the BOR 2 risk claim.  In her decision she correctly sets out the law and key legal principles relating to the four applicable grounds.  The applicant elected to answer questions during the hearing.

10.The adjudicator considered the seriousness of the injuries he sustained in the one incident where he was attacked.  She found that the group of men could have inflicted much more serious injury, or even killed him but did not and therefore had no intention of killing him as they threatened.  His injuries were in fact not serious.  The applicant told the adjudicator that he made the second police report because he did trust the police and only speculated that the police may or may not help him.

11.He agreed that whilst he lived with his aunt’s for four months before he left India, no one from SAD located him.  He agreed that Avtar Singh would not be able to locate him if he moved to other places in India to live.  The adjudicator found that according to country of origin information she referred to, India was a large and hugely populated country meaning Avtar Singh would be unlikely to locate him.  He had work experience as a farmer as well as family and relatives elsewhere in India; internal relocation was a viable option.

12.The adjudicator considered country of origin information in relation to government corruption and found avenues of complaint open to the applicant if a police officer failed to initiate an investigation.  She found reasonable State protection available to him.

13.The adjudicator considered the persecution risk and found he was unable to show he cannot return to India or avail himself of the State protection of India due to a well-founded fear for a Convention reason.  She found that there was insufficient evidence to show that Avtar Singh and his men were acting on behalf of their party or that their party condoned the behaviour.  This meant there was insufficient evidence to show his fear arose from a refugee Convention reason namely, his political opinion.  She concluded the persecution risk claim failed.

14.As far as the BOR 3 risk was concerned she did not find the injuries he had suffered attained a minimum level of severity nor would the ill-treatment he would face if expelled attain that level.  She was not satisfied he faced a genuine and substantial risk of being subjected to ill-treatment, torture or CIDTP if refouled.  Therefore, his BOR 3 risk claim failed.

15.Under the heading of torture risk, she was not persuaded the applicant would be subjected to any real risk of torture or that he had suffered any ill treatment, be it physically or mentally in the past.  He had failed to establish that there were substantial grounds for believing he would be subjected to torture if he were refouled.  She had said under the heading of the persecution risk (it actually applies to the definition of torture, see S37U(1) of Cap 115) that “the applicant was not threatened or ill-treated by any Indian public officials or person acting in an official capacity”; essentially he was not a target of the State.  Obviously there was no pain and/or suffering inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  What she meant was that the elements in that section of the Immigration Ordinance was not satisfied and the torture risk claim failed.

16.The adjudicator does consider the applicant’s BOR 2 risk; there is no dispute he is not subject to the death penalty in India nor likely to be if he returns.  She does not find he is in danger of being arbitrarily deprived of his life under Article 2.  The adjudicator confirms the decision of the Director.

17.However, the decision of the Director came after the appeal hearing and the adjudicator should have considered whether or not she needed to conduct a second appeal hearing.  She makes no mention of this in her decision.  I have had sight of the Director’s decision and know that the applicant did not provide any additional materials or facts on any other absolute and non-derogable rights under HKBOR, particularly the BOR 2 risk.  In all likelihood, the adjudicator would not have found it necessary to conduct a second hearing; there were no new facts or any issues of law to deal with.  The fact is, to comply with a high standard of fairness, she must consider whether it is necessary or not and give reasons.

Leave to apply for judicial review

18.The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator.  This is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The board treated the appeal/petition as a de novo hearing or a rehearing.  There is no room for a judicial review of the Director’s decision.  I have therefore considered the grounds of this application against the decision of the TCAB only.

19.The applicant seeks to judicial review the decisions on three grounds:

(1)  lack of legal representation before TCAB/miscarriage of justice;

(2)  lack of language assistance/unfairness and potential injustice; and

(3)  wrongful exercise of case management power.

20.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.  She analysed the material, claims and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.

21.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”.

22.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.  The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.  The applicant agreed in the hearing that he had approached the duty lawyer scheme and requested representation for his appeal only to be refused by the scheme but he cannot remember if it was because there was no merit in his appeal.  This ground is not reasonably arguable.

23.The second ground contains two complaints, the first was a failure or refusal by the duty lawyer service to provide a translation of the applicant’s non-refoulement claim form which was his claim set out in English by an interpreter when it was completed by the applicant with the assistance of a duty lawyer.  The applicant now wanted it translated back into his mother tongue to ensure his claim had been translated properly; if wrong, it could have potentially lead to injustice.  However, during the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly.  If there had, the applicant would have been able to particularise it here in this ground.

24.There is also 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 provides no further particulars. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from para 9 of the affirmation “so as to avoid jeopardising my rights”.  I know from the Director’s Notice of Further Decision that the applicant did not provide further information to the Director as invited.  I note here that there is no complaint that the adjudicator did not consider a second appeal hearing.  I take that to mean the applicant accepts there was no need for one and he suffered no prejudice.  On this occasion, the adjudicator’s procedural error is not material.  This ground is not reasonably arguable.

25.During the hearing, the applicant was unclear whether he did or did not actually receive that letter from the Immigration Department referred to in his affirmation.  At first he said he did not receive it and then he said he received so many letters with decisions, he did not pay much attention to them.  His indecisiveness does not make this ground any clearer.

26.The third ground criticises the adjudicator for not making sense in her reasons for finding the applicant had a lax attitude and did not come across as someone who was in fear of torture or ill-treatment. The applicant says the fact he made more than one report to the police was an indication of how his fear was well-founded.  If he is referring to his risk of persecution, then that fact could be indication of such a fear.  However, the adjudicator has made it clear in her reasons that not only was the applicant not able to establish he had a well-founded fear at the time his claim was assessed for fearing persecution in the future, persecution feared must be for one of the reasons set out in the Refugees Convention which he had not established.  There was nothing in this ground that had merit for such an application.

27.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.

28.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 23^rd 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