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

HCAL704/2017

[2018] HKCFI 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 704 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 24 November 2013 and was permitted to remain until 8 December 2013.  He overstayed and surrendered to the Immigration Department on 3 March 2014.  He lodged a non-refoulement protection claim on the same day.  That claim was rejected by the Director of Immigration (“the Director”) on 24 November 2014 and 23 January 2017.  After the Director’s first decision the applicant did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 1 March 2016 and confirmed the Director’s decision.  The applicant did not file any application to this court in relation to that decision within the three-month period set down in Order 53 Rule 4.

2.The Director wrote to the applicant on 5 January 2017 inviting him to submit additional facts if he wished in relation to a BOR 2 risk.  Ultimately that risk claim was rejected by the Director on 23 January 2017.  The applicant lodged an appeal/petition to the TCAB and on the 15 September 2017 the TCAB dismissed that appeal without an oral hearing.  The applicant filed a notice of application for leave to apply for judicial review of that decision on 3 October 2017.  He requested an oral hearing which was set down for 20 February 2018.  The applicant appeared in person having had his application for legal aid refused.

3.The basis of the applicant’s claim was that if he were to return to his hometown in India he would be killed by his uncle who had stolen all his savings, his family’s savings and the property bought with the applicant’s money.  Both the Director and the adjudicator set out the applicant’s claim and evidence in full in their decisions therefore there is no need for me to repeat it here.

4.The applicant had entrusted his uncle with all the financial affairs of his family as had his own father.  His uncle was an influential member of the Akali Dal party and was well-connected with party members.  His father had entrusted his uncle with his money and income and the applicant did the same.  The applicant worked overseas from 2002 to 2011 and sent his wages to his uncle. The family trusted him.  When the applicant returned to marry in 2006, he realised that the uncle had purchased two plots of land with his money but put them in his own name.  Still the applicant continued to let his uncle manage his savings and income.  His uncle would give an allowance to the applicant’s wife whenever she required money.

5.When the applicant returned to live in India in 2011, he asked his uncle to return his savings and his properties but he refused without an explanation. The applicant had no choice but to ask the village council to intervene and mediate but his uncle refused to participate.  He was very aggressive the applicant and threatened him with harm especially if he went to the police.  However, the applicant had no choice but to go to the police.

6.He soon realised that they were not prepared to help and he later came to know it was because his uncle had bribed them.  They told him they would not help because it was a personal dispute.  Later they demanded he pay them a Rs.200,000 bribe to investigate.  In May 2012 the applicant’s wife arranged employment in Hong Kong as a domestic helper because they were in financial difficulty and to date she is still here.

7.In June 2013 the applicant was attacked by his uncle and required medical attention to a cut to his toe.  After this incident the police did not help so the applicant flew to Hong Kong for protection but was not allowed to enter Hong Kong; he was turned away.  He did not return to his village for several months.  In November 2013, his uncle attacked again with his bare hands and tried to strangle him but luckily neighbours intervened. The applicant again tried to enter Hong Kong and was successful on 24 November 2013.

8.The adjudicator, as 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.This application only concerns the BOR 2 risk appeal decision.  From the papers, I can see the Director wrote to the applicant on 5 January 2017 inviting him to submit any additional facts if he had any, that he considered relevant to a BOR 2 risk claim; that is his absolute and non-derogable right under the Hong Kong Bill of Rights, including his right to life under Article 2.  From the second letter from the Director dated 23 January 2017, I can see that the applicant did not provide any additional information by the deadline.  The Director considered the provisions of Article 2 and found on his facts and evidence he had failed to establish a personal and real risk of his right to life and other rights under that Article being violated if refouled.

10.The applicant said during the oral hearing that he received the letters from the Director late and had no opportunity to submit additional information on time and filed his notice of appeal late because he was detained by the Immigration Department.  The adjudicator of the TCAB allowed an extension of time to file his notice of appeal.

11.The adjudicator considered the papers, his notice of appeal and found the applicant had provided no new facts, information or raised any new legal issues since the adjudicator had considered his claim previously.  There were no issues of credibility that had arisen.  As he said in his decision, the applicant’s case was as clear to him at that moment as it was when he considered it on the previous occasion.  He saw no reason, need nor justification to organise another oral hearing when nothing new had arisen nor needed to be clarified.  He found the petition/appeal could be dealt with on the papers.

12.The adjudicator considered the issues under Article 2 and the rights therein.  He considered the applicant’s evidence and claim and found there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; he did not find the applicant to have succeeded in establishing a case under BOR 2 risk.  He confirmed the decision of the Director.

Leave to apply for judicial review

13.I considered the applicant’s grounds set out in his affirmation.  He seeks to rely on a submission that a lack of an oral hearing was a failure on the part of the adjudicator to adhere to a high standard of fairness.  He suggests the fact he was not provided with a legal representative is unfair and unlawful.  In addition, the adjudicator failed to explain and give reasons why the applicant’s case did not succeed in invoking protection under Article 2.

14.I have considered the judgment of FB v Director of Immigration HCAL 51/2007 quoted by the applicant and it does not prescribe that a claimant must have an absolute right to free legal representation at all stages of the proceedings.  The applicant had the benefit of legal representation in presenting his claim to the Director.  Thereafter, the duty lawyer service will continue representation if it is of the opinion that the applicant’s appeal has merits.  The same applies to the legal aid; it is processed on the basis of a merit test.

15.There is no merit in the ground that the lack of an oral hearing was a procedural unfairness.  I have considered the adjudicator’s reasoning and I see no error of law or evidence of procedural unfairness nor a failure to adhere to a high standard of fairness in the making of that decision.

16.I was satisfied the adjudicator had considered the applicant’s evidence, claim and applied it to Article 2 before making a determination.  He had given details of his findings of the applicant’s evidence in his first decision which were applicable to the second decision.

17.Lastly I take into account what the applicant told me during the hearing in submissions and that was he wished to remain in Hong Kong to wait until his wife had completed her employment contract as a domestic helper then, they would return to India together.  He did not want to leave earlier than his wife.  This is not a ground for considering leave for judicial review.

18.I found no errors of law, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  I found no grounds that were reasonably arguable.  I found no realistic prospect of success in this application therefore, I refuse leave for judicial review.

Dated 16^th day of March 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