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

HCAL542/2017

[2018] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 542 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 last entered Hong Kong illegally on 7 February 2015 and overstayed.  He was arrested by the police on 24 February 2015 for overstaying and then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 2 November 2016.  He then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 29 May 2017.  The applicant filed a notice of application for leave to apply for judicial review on 24 August 2017.  He requested an oral hearing which was set down for 27 March 2018.  The applicant was absent on the hearing date.  I reserved my decision and I now consider his application on the papers.

Request for a 2^nd hearing date

2.On 27 March 2018 when the applicant did not appear at the appointed time, the court interpreter called the applicant’s mobile phone number supplied by the applicant on his application form, the Form 86. The applicant answered and confirmed his identity.  He informed the interpreter that he did not receive the notice of hearing posted to him on 15 February 2018 but confirmed that the address on the notice was correct.  I have no reason to doubt what the interpreter relayed to me in open court before I reserved my decision.

3.On 29 March 2018 the applicant wrote to the court and said he was requesting a new court date because he missed the hearing date of 27 March having not received any court letter. He then requested letters to be sent to a different address.  The address he gave was “Room 2 Flat E 2F No 21-21A 23-27 Shatung Street, Mongkok, Yau Tsim Mong”.

4.From the court file it is clear that there was an earlier notice of hearing posted to the applicant on 10 January 2018 to his address as stated on his application form, his Form 86.  It was sent by ordinary post and registered post.  Both letters were returned by the post office and marked “refused acceptance”.  It was the wrong address.  Attempts to call the applicant at the telephone number left on the application form were futile.  The court clerk resorted to writing to the Immigration Department on 14 February requesting the applicant’s latest address and contact number which they should have because the applicant must report to them regularly and is under a duty to them to supply his most up-to-date address.  On 15 February 2018, the Immigration Department replied by letter informing this court of the applicant’s latest reported address and telephone number.  A new notice of hearing was sent to the applicant on 15 February 2018 to that address.

5.In fact, the applicant has a duty to inform this court of any change of address and it cannot be an excuse for him not to attend a hearing when the court has sent a notice of hearing to the address on record. In fact, the court clerk has gone above and beyond his duty by making enquiries with the Immigration Department as to the applicant’s latest reporting address to that department in order to send him a second notice of hearing when the post was returned by the post office.

6.It would appear that the Immigration Department’s records are perhaps not up-to-date either.  Our latest notice of hearing was sent on 15 February and the applicant on the phone on 27 March confirmed that the address on the notice of hearing was accurate yet in his letter two days later gives a third address, a different address for future correspondence which makes me suspect that he is not telling the whole truth.  His explanation in the letter does not tally with what he told the interpreter on the phone; it would appear he is trying to make excuses for his non-appearance.

7.I am satisfied from the court files that a notice of hearing was posted to his address as set out in his Form 86 but it was returned by the post office because it was the wrong address.  I am satisfied that the court then posted a second notice of hearing to an address supplied by the Immigration Department purported to be his latest known address.  There is no reason he should not have received it.  I see no reason to accommodate his request for a second hearing date, his lack of a reasonable excuse suggest an intention to delay these proceedings.  Therefore, I proceed to consider his application on the papers.

Background

8.The basis of the applicant’s claim was that if he were to return to India he would be harmed by Ramesh a drug dealer because he gave evidence against him in court.  He is also a supporter of the Congress Party.  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 summarise it here.  Ramesh was a drug dealer in his home area who the applicant reported to the police one day in 2013.  The applicant give evidence against him in court and he was sentenced to two years’ imprisonment along with other accomplices.

9.In February 2015 the applicant was in Hong Kong on business when his father called and said that Ramesh had been released from prison, come to the applicant’s home and vandalised it with about 10 men as a revenge attack.  The applicant’s father lied to Ramesh and said the applicant was in Goa.  Ramesh told him that they would kill the applicant when they found him.  His father also said that he had found out Ramesh was an active supporter of the INC and politically connected to influential politicians so suggested he not come home because the police and authorities would not protect him from Ramesh if he had such good connections.  The applicant had no choice but to remain in Hong Kong to save his own life.

10.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”).

11.The applicant has proposed both the Director and the TCAB as respondents as well as interested parties which makes no sense.  In the grounds of his affirmation the only ground against the Director or that mentions the Director relates to letters referring to a BOR 2 claim he should have received and it has no merit.  In any event, the applicant has already utilised the channel of appealing the Director’s decision of 2 November 2016 to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing. He should have covered all mistakes he says the Director made in his appeal to the TCAB.  In addition, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.

12.The adjudicator conducted an oral appeal hearing.  He correctly set out the applicable law and key legal principles for the four grounds.  He analysed the applicant’s evidence and considered his credibility.  He carefully considered the approach to be used when assessing the credibility of a claimant of this nature; that is when considering whether he faces a real risk of persecution, torture or CIDTP.

13.The adjudicator gave credence to the applicant’s evidence that he reported and gave evidence in open court against Ramesh.  He accepted that Ramesh may bear some animosity towards the applicant.  However, the source of his fear comes from events he says that have occurred in India after he arrived in Hong Kong.  They have all been relayed to him by his father over the telephone.  He has no other evidence to corroborate what his father has told him.  His evidence about Ramesh, his background, his connections politically and financially are bare assertions and the adjudicator gave them no weight.  He believed the applicant made these assertions to strengthen his claim.

14.The adjudicator considered the Country of Origin information set out in the Director’s decision and found State protection available as well as internal relocation a viable option for him.   He applied the law to the applicant’s evidence that he accepted and found that he failed to establish a case of non-refoulement under any risk claim be it a risk of torture, BOR 2, BOR 3 or persecution.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decision of the adjudicator to be without fault.  He analysed the material, claims and evidence with care.  The same applied to the Director in fact.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

16.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/unfairness;

(3) lack of communication from Director/no BOR 2 letter;

(4) wrongful exercise of case management power/not analyse credibility properly; and

(5) no attendance by Director at the appeal/not taken seriously.

17.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”.

18.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.

19.The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his non‑refoulement claim form (“NCF”) despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request.  His NCF was completed by him with the assistance of a lawyer and interpreter.  If there was any mistranslation of his claim in his interviews or NCF then it would have already come to light in the Director’s decisions and the TCAB decision.  Since there is no complaint arising from those decisions his fear cannot be justified.  He claims in his affirmation that some claimants made appeals with a copy of their translated NCF but does not specify that they were provided by the duty lawyer service.  There is no merit in this ground.

20.The applicant’s third ground is completely unmeritorious.  He suggests he should have received a letter from the Immigration Department inviting him to submit additional information relating to a BOR 2 risk claim but he did not.  Moreover, if he had, from what he understood, the letter was highly technical and hard for a layman like him whose English was not his first language to understand it.  He does not know if such letters were sent to him or whether his BOR 2 risk claim was dismissed and he complains about the lack of communication.  This applicant would not have received such letters or a Notice of Further Decision because his BOR 2 risk claim was considered with the other three applicable grounds at the same time and dealt with at the same time as is clear from the Director’s decision of 2 November 2016, particularly pages 14 – 16.

21.The applicant’s fourth ground has no particulars nor does it set out any criticism specific to the decision-making process.  I cannot find it reasonably arguable.  The adjudicator makes it clear he understands the approach to be used when assessing credibility of a claimant in such cases.  He then does highlight what parts of the applicant’s claim or evidence he finds damages his credibility and give reasons for his findings.  I see no fault in this approach.

22.The last ground is perhaps a misunderstanding by the applicant; the fact no one attends the hearing from the Immigration Department does not mean it is not a formal appeal.  Written submissions would have been submitted in advance and attendance of a representative for the Director excused by the adjudicator.  There is no merit in this ground.

Conclusion

23.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 to apply for judicial review is refused.

Dated 23^rd day of April 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