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

HCAL520/2017

[2018] HKCFI 1019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 520 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 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 entered Hong Kong on 11 March 2014 and was permitted to remain until 25 March 2014 but overstayed.  The applicant then surrendered to the Immigration Department on 10 April 2014.  He raised a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 11 December 2014 and 11 May 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 26 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 16 August 2017 requesting an oral hearing which was set down on 9 January 2018.  The applicant appeared in person.

2.The basis of his claim was that if he were to return to India he would be harmed and/or killed by supporters of the Akali Dal party (“ADP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I intend to summarise it here.

3.The applicant was born in the Punjab into a lower caste which is often discriminated against.  His family were supporters of the Congress Party (“CP”) and during elections would often with campaigning. Supporters of the ADP and CP often clashed and verbally abused each other during elections.  The applicant saw it on numerous occasions when he was at school.  The applicant studied until class 7 in 2007 and then began to work as a labourer to pay for his younger brother’s fees.

4.In 2010 when 16 years old, a masked person stuck a stick in the applicant’s bike wheel and he fell off.  He suspected it was an ADP supporter warning him to stop campaigning for the CP.  He hurt his knee and required medical treatment and bed rest for a couple of weeks.  He had no further conflicts until the 2013 elections.

5.In 2013 the applicant had an uncle running in the elections and the applicant assisted with campaigning.  On the day of village head elections, the applicant was distributing leaflets in a polling booth when a large group of ADP supporters came to stop them with violence.  The applicant was beaten and threatened with death until the police broke up the violence.  The applicant’s uncle won the election but there was a recount and he was replaced by an ADP candidate as the winner.

6.That night the ADP celebrated and let off fireworks outside the applicant’s door, when he opened it he was grabbed and beaten up until rescued by his family.  The applicant’s family were worried about his safety from ADP supporters and sent him to live with a maternal aunt some 20 km away to recover from that beating.  After he left to go there, ADP members did come to his house to look for him and threatened to kill him if they saw him again.  His family were worried for his safety and applied for a passport and Chinese Visa so he could leave if necessary.

7.However, before he left the country and while still staying with his aunt in February 2014 the applicant met a group of men who he later recognised to be ADP supporters that he fought with during the polling booth incident in 2013.  The next day they and some more men attacked him near his aunt’s home.  He was bruised and applied ointment.  His mother told him to return home because his aunt did not want him to live there any longer.  A friend told him to go to Hong Kong to apply for protection there.

8.Three or four days after returning home the applicant was attacked by two or three masked men who beat him with sticks.  They verbally threatened to kill him if they saw him again.  His mother then advised him to leave the country so he decided to travel to Hong Kong and stayed at home until he left in March 2014.

9.The Director and the adjudicator of the TCAB 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”).

10.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  In fact, the adjudicator adjourned the hearing twice and proceeded on the third occasion despite the applicant having no reasonable excuses for his absence on the first or second previous dates.  On the third date the applicant elected not to give evidence or answer questions despite the adjudicator explaining to him that the appeal/petition was a rehearing and he had issues to clarify with the applicant.  The adjudicator reiterated that the applicant’s evidence on some issues depended entirely on his subjective view which could not be properly tested for its veracity without his evidence but the applicant continued to elect not to answer questions.

11.The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the burden of proof and standard of proof in such claims as well as the applicant’s evidence as well as his analysis of it.  The adjudicator concluded that his claim he left India for the purpose of avoiding serious harm from the ADP was not credible and not accepted.  The adjudicator set out full reasons why he reached that conclusion; what inconsistencies troubled him and what evidence and issues needed clarification. Issues that led him to doubt the credibility of the applicant.

12.In view of his finding, the adjudicator found the applicant had not made out a case for non-refoulement protection.  He found the applicant was unsuccessful due to his lack of credibility, in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and unable to prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

13.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 carefully. The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

14.The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  There is only one ground in his affirmation directed at the Director; he failed to ensure the applicant received the letter inviting him to submit information to support his BOR 2 claim and failed to ensure he could understand it if he did receive it.  I will refer to this ground later but it has no merit on the applicant’s own admission during the hearing.

15.I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  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.  Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.  In any event, after the applicant’s admission during the hearing there are no grounds against the Director in this application.

16.The supporting affirmation lists the following as grounds for seeking leave:

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

(2) failure of the immigration Department to ensure contact/inability to read Immigration Department letter/procedural unfairness; and

(3) procedural irregularity/no Immigration department representative at the appeal.

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 continue to represent applicants in their appeals if they are of the view there is merit in their cases.  The applicant said during the hearing that the duty lawyer scheme told him they would not continue to represent him because in their opinion his appeal had no merit.  Their assessment is on a case-by-case basis.

19.In the second ground, the applicant submits he has heard that he should have received a letter inviting him to submit additional information if he wished to support a BOR 2 risk claim.  He has been told the letter is in English and the language used is very technical, making it hard for him to understand.  He says specifically that he is “uncertain” whether the letter has been issued to him or the dismissal letter has been issued to him.  He says the Immigration Department has not ensured he has received them or given him a chance to explain himself further.

20.However, during the oral hearing the applicant confirms that he did receive a letter dated 25 April 2017 inviting him to submit information if he wished but he was sick at the time so he did not submit any information.  Despite what the affirmation says he now recalls that he did receive those letters.  Therefore, there is no merit to this ground.

21.The last ground was a criticism of the Director’s department for not sending a representative to the appeal hearing.  The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused.  There is no procedural impropriety or unfairness to the applicant.  There is no merit in this ground.

22.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.  In fact, the adjudicator was more than fair by allowing the applicant to adjourn hearing dates without reasonable explanation.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.

23.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 24^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