Waryam Singh v. Torture Claims Appeal Board

HCAL 805/2017

[2018] HKCFI 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 805 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year-old national of India who arrived in Hong Kong on 4 November 2013 with permission to remain as a visitor up to 18 November 2013, but he did not depart and instead overstayed until 27 November 2013 when he surrendered to the Immigration Department.  On 7 March 2014 he lodged his non-refoulement claim with the Department on the basis that if he returned to India he would be harmed or killed by his neighbor over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Thaktu Chak, Tarn Taran, Punjab, India where his mother and sisters still live.  After leaving school the applicant worked in a food factory and also helped out in his father’s farmland in the village which he stood to inherit as the only son in the family upon his father’s demise.

3.In 2011/2012 his neighbor SL who owned the land adjacent to his father’s land started a dispute with his father over the boundary of their lands, when there were frequent confrontations between them including on one occasion when SL used a ploughing machine to alter the boundary which was reproached by the applicant’s father, and despite his father’s repeated requests, the village head failed to intervene or to help them to resolve the dispute as the applicant suspected that the village head was friendly with SL.

4.By 2013 the dispute escalated to the point of SL starting to threaten to kill both the applicant and his father, and for which his father approached the local police but no action was seen to have been taken by them.  As his parents became concerned for his safety, the applicant therefore went to Delhi and stayed there for two months to avoid SL, yet the threats from SL persisted and by October 2013 the applicant decided to leave India and departed on 29 October 2013 for Guangzhou, China, and on 4 November 2013 he arrived in Hong Kong where he subsequently lodged his non-refoulement claim.  Later he learnt that his father had passed away on 14 August 2016 and he therefore stands to inherit his land and becomes the sole target of SL’s threats.  On 30 August 2016 he completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 18 October 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

6.In his decision the Director found on the applicant’s case that the threats from SL were only verbal and indicative a low future risk to the applicant upon his return to India, that in the absence of any evidence of any involvement of the state or the police in SL’s threats that state protection would be available to him if resorted to, that objective Country of Origin Information (“COI”) show structured police forces and effective judicial systems are in place in India to provide protection and justice to the public in general, and that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread over a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas away from his home village such as Delhi where he had lived for two months without any incidents and beyond any threats from his neighbor.   

7.On 28 October 2016 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 7 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 October 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the applicant’s accounts of the dispute with SL and the threats against him but was not satisfied that SL would engage any more serious conduct than hollow threats upon the applicant’s return, as his parents and later his mother after his father’s demise have been able to work in their land unhindered and unmolested all those years since he left India, and that effective state and police protections are available to the applicant upon his return to India, and concluded that there is no real risk that he will be harmed under any of the applicable grounds.   

9.On 25 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

(1)  lack of legal representation in his appeal to the Board;

(2)  lack of legal assistance in translating his NCF for him to find out if the interpreter had translated the basis of his claim properly which could potentially lead to injustice;

(3)  wrongful exercise of case management power for rejecting his claim on his credibility and by giving undue weight in COI as to the effectiveness of law enforcement and avenues for justice in India; and

(4)  lack of fair hearing for not requiring the attendance of the Director in his appeal hearing.  

10.For his complaint in ground (1) of no legal representation provided for him in his appeal to the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

11.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator without any difficulty.  I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is reasonably arguable.

12.Regarding his complaint in ground (2) of not being provided a translation of his NCF so that he could find out if the interpreter had been translating the basis of his claim properly, it is clear that the NCF was completed on his instruction with legal representation from the Duty Lawyer Service, and that he was assisted by a proper interpreter at his appeal hearing, hence in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted, I find this ground of his simply speculative and without any merit.

13.As for his ground (3) in which he complains that the Board has no reasonable basis for rejecting his credibility, apart from the well-established principle that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision makers, the fact is that in this case the credibility of the applicant was in the main not an issue as the adjudicator clearly accepted that his evidence was generally consistent with his claims previously made to the Director, as it was so stated in paragraphs 24 – 28 of the decision.  I therefore fail to see any basis for any complaint against the Board on issue of credibility.

14.As regard his complaint of the Board placing undue weight on COI as to the effectiveness of state protection in India, in the absence of any particulars or specifics from the applicant, and upon examining those COI listed and referred to by both the Director and the Board, I do not find anything amiss arising from their reliance of them in their consideration and assessment of state protection in India or for that matter of the applicant’s claim.  Accordingly I do not find any basis or merit in ground (3) of the applicant.

15.As for the applicant’s complaint in ground (4) over the non-attendance of the Director at his appeal hearing, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

16.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 11^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