Rana Jaswant v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1074/2017

[2018] HKCFI 1606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1074 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 34-year-old national of India who arrived in Hong Kong on 18 May 2014 with permission to remain as a visitor up to 1 June 2014 when he did not depart but instead overstayed until he was arrested by the police on 17 June 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 17 July 2014 on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Bharatiya Janata Party (“BJP”).  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Garhshankar District, Hoshiarpur, India.  After completing secondary education he became a supporter of the Indian National Congress Party (“INC”) and was elected its youth president when he was an university student in Garhshankar.

3.From around 2006 some members of opposing party BJP started to approach the applicant to persuade him to join BJP, and when he refused they would make verbal threats against him.  One day in 2007 when he was attending the wedding of his friend, he was approached by several BJP members to join BJP, and when he refused a quarrel broke out which escalated into a fight when the applicant was hit with punches and kicks until those BJP men were restrained by other guests.

4.On another occasion in August 2009 when the applicant with two INC supporters were putting up posters for the local election in his village, he was attacked by the same BJP members with wooden sticks and baseball bats which caused a cut to his left eyebrow until they were stopped by the passers-by.  Afterwards the applicant left India to study in Cyprus for four and a half years without any incidents until 2014 when he returned to India.

5.Although he was no longer the youth president of INC or held any post in the party he continued to show his support by attending their rallies during local elections.  One night when he was on his way home he was ambushed and attacked by some BJP people with knives that he was slashed in his right hand until some passers-by intervened.  After the incident the applicant felt it was not safe for him to remain in India and therefore departed for Hong Kong on 18 May 2014 where he subsequently lodged his non-refoulement claim and completed a Non-refoulement Claim Form (“NCF”) on 27 January 2016 with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 1 September 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”).

7.In his decision the Director assessed the risk of the applicant being harmed by the BJP people upon his return to India as low given the fact that he no longer holds any position in the party and is not an important member and hence would not be a target of the BJP people, that state and police protection would be available 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 highly educated adult to move safely to other areas away from his home district such as Delhi.    

8.By a Notice of Further Decision dated 29 May 2017 the Director again rejected the applicant’s claim in the absence of any response from the applicant to an earlier invitation for him to submit additional facts 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”).

9.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 on 13 September 2016, and for which he attended an oral hearing on 20 June 2017 before the Board but declined to give evidence or answer any questions from the adjudicator for the Board.  On 23 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no direct or other reliable evidence to corroborate the applicant’s own assertions of threats from the BJP people, that in any event state and police protection would be available to him if resorted to, and that as the threats to him was a localized one confined to his home district that internal relocation is viable to him in other areas away from his home district such as Delhi that it is not justified to afford him with non-refoulement protection in Hong Kong. 

11.On 14 December 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 put forward the following grounds for his intended challenge:

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

(2)     lack of language 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; and

(3)     lack of fair hearing for failing to give any reason for not requiring the attendance of the Director at his appeal hearing before the Board.   

12.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.

13.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.

14.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.

15.As for his complaint under ground (3) 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.     

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 10^th 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