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

HCAL437/2017

[2018] HKCFI 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 437 of 2017

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 17 August 2013 and overstayed.  He was arrested by the police on 15 September 2013; only then did he lodge a non-refoulement protection claim.  That was rejected by the Director of Immigration (“the Director”) on 16 June 2016 and 12 June 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017.  He then filed a notice of application for leave to apply for judicial review on 24 July 2017 and requested an oral hearing which was set down on 16 November 2017.  He was absent and given a second opportunity and appeared in person on 28 December 2017.

2.The basis of his claim was that if he were to return to India he would be harmed or killed by Dilbag Singh and supporters of the Akali Dal Badal party (“Akali Dal”) because the applicant was a supporter of the Congress party (“Congress”).  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.

3.The applicant was born in 1982 in the Punjab, is married with three children and is a supporter, not a member of the Congress party.  In June 2013 the applicant’s uncle was a candidate in the election for the position of village head in his village and the applicant helped him canvas votes door-to-door but his uncle lost the election to Dilbag who was a member of the Akali Dal.  During his victory parade Dilbag and his supporters paraded through the village but stopped outside the applicant’s family home and taunted his uncle.  They used foul language insulting the women of their family so the applicant’s father confronted them but was knocked down the ground in the fracas.  The applicant and his uncle rushed to help him but were attacked by flagpoles and swords.

4.The applicant lost consciousness and woke up in hospital with multiple wounds as did his father and uncle.  Members of the Congress party had taken the three men to hospital.  The attacks were reported to the police but it was not investigated because the Akali Dal were now the ruling party.  When all three men were discharged from hospital they made a police report in person and the police officer told them they would investigate Dilbag.  The applicant later found out that Dilbag bribed the police to do nothing.

5.After the applicant and his uncle went home to recuperate, Dilbag and his supporters continue to harass them outside their home verbally and regularly.  This frightened the applicant who locked his doors and stayed inside.  His father told the applicant and his uncle to leave home and hide for a while.

6.The applicant travelled to his maternal grandparents’ village which was about 35 km away and hid there for about six weeks.  He stayed inside the house at all times.  Then his parents told him that the police were investigating him for a false charge of drug possession which the applicant believed was falsely reported by Dilbag.

7.The applicant then planned to leave India because he felt his life was in danger from the Akali Dal.  His friend arranged for him to travel to Hong Kong via China.  He left on 10 August 2013.

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 conducted an oral hearing and treated the appeal as a rehearing.  The applicant was legally represented during this appeal hearing.  In his decision, the adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it.  He set out his findings and assessment; what he found generally consistent and what was not.  In his conclusion the adjudicator set out most meticulously what he accepted as the applicant’s evidence after giving the applicant the benefit of the doubt.

10.Internal relocation was discussed between the parties.  There was also discussion in light of the fact that there had been elections in Punjab in January 2017 and the number of seats Akali Dal held in the legislative assembly were reduced from 56 in 2012 to 15 in 2017; Congress had won the majority of seats and formed the government in Punjab.  During the hearing the applicant’s legal representative submitted the risk of harm to the applicant was limited to the Punjab but should bear in mind the different living costs between rural and urban India.  The adjudicator clearly gave it great consideration and ultimately concluded that the applicant would not face undue hardship if he relocated to Mumbai, Chennai or Kolkata.  He would not face a real risk of harm from Dilbag if refouled to India and relocated to those locations.

11.The adjudicator then applied the law to his findings and found the applicant did not face a real risk of persecution for a convention reason if he is refouled to India and relocated to live in Mumbai, Chennai or Kolkata.  Because of that finding, it was unnecessary for him to assess whether the harm the applicant feared was for a Convention reason.  The persecution risk claim failed.

12.The adjudicator found on the evidence before him the applicant had failed to establish he would face a real risk of torture as defined in section 37U(1) of the Immigration Ordinance; his torture risk claim failed.

13.For the same reason, he concluded that the applicant had failed to establish a real risk he would be subject to torture or CIDTP under BOR 3 or a real risk of being deprived of his right to life under BOR 2 if refouled; his BOR 2 and his BOR 3 risk claims failed.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

14.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence meticulously.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

15.The applicant has wrongly proposed both the Director and the TCAB as respondents as well as the interested parties in his Form 86.  However, there are no grounds in his affirmation that are aimed at the Director.  I therefore propose to consider this application against the decision of the TCAB only.  In any event, the applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB, after all, he was legally represented in his appeal.

16.There are only two grounds in his affirmation and the first ground is a complaint that the duty lawyer service did not provide him with a translation of his Answer 35 from his non-refoulement claim form as he requested.  To be deprived of a translation was to jeopardise his rights. He wanted to ensure that the interpreter had translated his claim properly.  During submissions in the oral hearing the applicant told the court in answer to a question that he did not know what an Answer 35 was. This makes it unlikely he requested a translation of it.

17.If the applicant’s claim had not been translated properly from the outset it would have come to light very quickly, especially as the applicant was represented not only before the Director but before the TCAB as well.  There is no evidence of any misinterpretation or mistakes made.  There is no merit to this ground.

18.The second ground is a complaint that the adjudicator has made a wrong finding of fact and law.  The adjudicator found the applicant had not established any torture or persecution risk.  The applicant points out that the adjudicator accepts that he was attacked, injured and hospitalised.  He accepts he even bears the scars from those wounds.  Yet the applicant does not understand how he has failed to establish he will face a real risk of torture as defined by section 37U of the Immigration Ordinance.

19.As I said above, the adjudicator’s findings are set out in detail and reasons are given in full.  I see no faults with his findings nor will I interfere with his findings.  I see no merit in this ground.

20.I see no error of law in the adjudicator’s decision.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  In fact, this adjudicator has set that bar very high.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21.In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 4^th day of May 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