Jaswinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 850/2017

[2018] HKCFI 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 850 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 32-year-old national of India who arrived in Hong Kong on 16 April 2015 with permission to remain as a visitor up to 30 April 2015 when he did not depart but instead overstayed until 4 May 2015 when he surrendered to the Immigration Department.  On 31 August 2015 he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain drug dealers.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Badshahpur, Samana, Patiala, Punjab, India.  After leaving school he worked in the farm in Samana and also as an electrician to earn his living.  One day in December 2014 whilst working in the farm, he saw some men dealing drugs and when he told them to go away, he was attacked by them with hockey sticks and when he tried to flee he hurt his right leg. Eventually he was able to escape and ran home.  Afterwards he was told by his friend to hide as those drug dealers were dangerous, but when he heard that they were looking for him and threatened to kill him, he became fearful for his life and decided to leave India which he did on 16 April 2015 and arrived in Hong Kong when he subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 1 June 2016 with legal representation from the Duty Lawyer Service (“DLS”). 

3.By a Notice of Decision dated 25 July 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”).

4.In his decision the Director found no evidence that the drug dealers were going after him and that his behavior was inconsistent with someone who was in genuine need of protection, that there is no reason why he would not receive police protection 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 adult with working experience to safely move to other areas away from his home district such as New Delhi, Mumbai or Chennai where those drug dealers would not bother or able to locate him. 

5.By a Notice of Further Decision dated 9 August 2017 the Director again rejected the applicant’s claim in the absence of any response 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”).

6.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 8 August 2016, and for which he attended an oral hearing on 10 October 2017 before the Board during which he declined to give any further evidence or to answer any questions put to him by the adjudicator for the Board.  On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.In its decision the Board found the applicant’s claim based essentially on unreliable and incredible assertions, hearsay and speculation that it was not persuaded that he had been threatened or attacked or otherwise ill-treated by drug dealers or by anyone in the past, and did not see any real chance of him being harmed or otherwise ill-treated upon his return to India, and concluded that his has failed to demonstrate that he is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds.

8.On 6 November 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;

(3)     failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for ignoring COI which show malpractice in the judicial system in India; and

(4)     wrongful exercise of case management power on the part of the Director for failing to consider his COI thoroughly and for improperly relying on COI in rejecting his claim.   

9.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.

10.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.

11.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.

12.Regarding his 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 Notice of Further Decision and in the absence of any response from the applicant to his invitation to submit additional facts relevant to BOR 2 risk, the Director was entitled to reject his claim on the facts and evidence already presented on his behalf by his legal representation.  There is simply no merit in this ground of the applicant.

13.As for ground (4) over the Director’s reliance of COI in the assessment and consideration of his claim, in the absence of any particulars or specifics or elaboration from the applicant, I fail to see how the Director had erred with his assessment, and upon examination of those COI listed and referred to in his decision, I do not find any merits in this complaint of the applicant either.

14.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.

15.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 14^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