Vinay Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 997/2017

[2018] HKCFI 1541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 997 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 30-year-old national of India who arrived in Hong Kong on 23 January 2014 with permission to remain as a visitor up to 6 February 2014 when he did not depart but instead overstayed until he was arrested by the police on 10 February 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 12 February 2014 with the Department on the basis that if he returned to India he would be harmed or killed by his uncle over a business dispute with the applicant’s father.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Teontha, Tehsil Pundri, District Kaithal, State Haryana, India where his father worked as a farmer.  After leaving school the applicant assisted his father in his farming and got married in 2010.  At about the same time his father started a real estate business with his younger brother OBS who was a wealthy and influential man with strong political connection.  At that time the applicant was not involved in this business as he had gone overseas to work in Saudi Arabia.

3.One day in mid-2012 the applicant received a call from his father asking him to return to India to assist him in looking into the business accounts prepared by his uncle OBS which he found to be inaccurate and suspected OBS to have embezzled the business profits.  When the applicant accompanied his father to OBS’s office to inspect the company’s books and accounts, OBS refused and the three of them broke into a fierce quarrel during which OBS slapped the applicant on the face and with his men grabbing the applicant by his arms OBS hit him with an iron rod until he was restrained by the others.

4.Afterwards both the applicant and his father were taken to the hospital for treatment, and the assault was reported to the police, but when no action was seen to be carried out by the police, the applicant and his father took the matter to the village council, and when the council members accompanied the applicant and his father to OBS for discussion, OBS agreed to return to the applicant’s father his share of the investment within two weeks, but when OBS came up short with the amount and when it was rejected by the applicant’s father, a fight broke out again between them when the applicant and his father were attacked by OBS and his men and had to flee from the scene.

5.Afterwards as his father sustained an injury to his elbow and was unable to work in his farmland, the applicant decided to help out but when he was on his way to the farmland he ran into OSB and his men, he was attacked by them until he managed to run home. Sometimes alter in July 2013 OSB came to the applicant’s home with his men and started throwing rocks at his house, and when the applicant came out they attacked him until other villagers intervened and they left.

6.After that last incident the applicant felt it was no longer safe for him to remain in India, and so he departed Delhi on 20 January 2014 for Macau and from there he sneaked into Hong Kong on 23 January 2014 where he subsequently lodged his non-refoulement claim and completed his Non-refoulement Claim Form (“NCF”) on 14 August 2015 with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 9 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

8.In his decision the Director found low intensity and frequency of past ill-treatment from the applicant’s uncle indicative of a small future risk of harm upon his return to India, that it was a family monetary dispute between his father and his uncle with no involvement of the state or the police that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across 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 with work experiences to move to other areas away from his home district such as Delhi, Mumbai, Kolkata, Chennai or Bangalore where it would be virtually impossible for his uncle to locate him.

9.By a Notice of Further Decision dated 7 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed 20 May 2016, and for which he attended an oral hearing on 20 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found that even if it were to accept all the applicant’s evidence at face value that there was a financial dispute between his father and his uncle and that the latter had physically assaulted the applicant, it would not be sufficient to engage the relevant protection obligations, as the dispute is essentially about how much money the applicant’s father would be paid out on leaving a business with the uncle offering less than the father was prepared to accept which does not engage Hong Kong’s protection obligations, and that even if it is accepted that his uncle has made verbal threats against the applicant’s life into the future, it is still insufficient to engage Hong Kong’s protection obligations as COI indicated that India has a population of 1.2 billion people spread over 3 million square kilometers with several cities with more than 10 million people that the applicant can always relocate within the country beyond any capability or resources of his uncle to locate him.

12.On 1 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

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

(2)  lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for disregarding his rights in the consideration of his claim; 

(4)  wrongful exercise of case management power on the part of the Board for failing to find the attacks by his uncle and his men against him as torture or ill-treatments in the consideration of his claim; and

(5)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

13.For his complaint in ground (1) of not being provided legal representation in his appeal before 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: 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.

14.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 hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

16.Regarding his complaint under ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 3 – 6 of his Further Decision, and in the absence of his response to the invitation to submit additional facts relevant to BOR 2 risk, there is simply no merit in this complaint of the applicant.

17.As for ground (4) over the Board’s findings of the assaults by his uncle against him, as noted above and as explained by the Board in paragraph 25 of its decision that even in accepting that his uncle had physically assaulted him and had made threats against him, it would still not be sufficient to engage the relevant protection obligations, as the dispute is essentially about private monetary matter that does not engage non-refoulement protection in Hong Kong, whilst regarding the Board’s reliance of COI in its assessment of malpractice and effectiveness of police and law enforcement in India, again the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 19 – 20 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant.

18.As for his complaint under ground (5) over the non-attendance of the Director at his appeal hearing before the Board, 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 oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.     

19.In the premises and having proceeded to consider 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.

20.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 3^rd day of August 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