Subhash Kumar v. Ms Wong Hing-chun, Esq., Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1079/2017

[2018] HKCFI 1609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1079 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 38-year-old national of India who arrived in Hong Kong on 16 September 2005 with permission to remain as a visitor up to 30 September 2005 but he did not depart and instead overstayed he was arrested by the police on 21 December 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 11 November 2008 on the basis that if he returned to India he would be harmed or killed by a man DS 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 Sadhaura, State Haryana, India to a family of farmers where his father together with the applicant’s two uncles had inherited their farmland from the applicant’s grandfather in the village, and after leaving school the applicant also worked in the farmland which belonged to his father.

3.One of his uncles who was unmarried and lived with his family often went drinking with DS who was the head of the village council and was well-connected with politicians in the area.  One day in 1992 when the applicant was about 12 years old, his uncle was drunk and signed away his farmland to DS, and after his uncle died later in the same year, DS took over his farmland, and while the applicant’s family was suspicious about the matter they did not dare do anything nor did they seek any assistance from the police.

4.When the applicant became older he decided to try to take back his uncle’s farmland from DS, and so one day in 2003 he together with his brother tried to cultivate his uncle’s land but were driven away by DS and his men with wooden sticks which caused injuries to the applicant’s eyebrows, and as the applicant and his brother were fleeing from the attack, DS threated to kill them if he ever saw them in the village again.

5.After the incident the applicant and his brother took shelter at their aunt’s place in Ambala and later the applicant went to stay at his friend’s place in Himachal Pradesh, but when he heard that DS was still looking to kill him, he became so fearful for his life that he decided to leave India, and so he departed on 16 September 2005 for Hong Kong where he subsequently lodged his torture claim, and with the commencement of the Unified Screening Mechanism, he completed a Supplementary Claim Form (“SCF”) for non-refoulement protection on 25 August 2014 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 23 October 2015 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 considered the level of risk of harm from DS upon the applicant’s return to India as low as he has been occupying the farmland more than 20 years with the applicant having left India for more than 10 years without any further action, that in any event as it was a private personal dispute between the two of them that there is no reason why state or police protection would not be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available to the applicant to move safely to other areas away from his home district such as New Delhi where there is no reason why DS would bother to locate him.

8.By a Notice of Further Decision dated 9 June 2017 the Director again rejected the applicant’s claim after receiving and considering additional submissions made by his legal representation on his behalf 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, for which he filed his appeal on 5 November 2015, and for which he attended an oral hearing on 29 September 2017 before the Board with legal representation during which he also gave evidence and answered questions put to him by the adjudicator for the Board.  On1 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no reliable evidence to support the applicant’s alleged fear of harm from DS upon his return to India, that even if such threats are true that it is not sufficient to be feared as DS has already obtained the farmland for so many years that as long as the applicant desists from trespassing on his land he would not be at risk, and as such the applicant has failed to establish a case for non-refoulement protection in Hong Kong even before considering the availability of state/police protection or the option of internal relocation to the applicant upon his return to India.     

11.On 14 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)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant at all, and I am unable to find any basis or merits in any of them.

13.The only other complaint which the applicant did elaborate in his affirmation is over his hearing bundle which he claims was provided to him only a few days before his appeal hearing including the Director’s skeleton submission all were in English thereby given him insufficient time to prepare for his appeal and to find an interpreter to assist him.

14.Even assuming that the hearing bundle was indeed provided to him only shortly before the hearing, and I note that he has not produced any evidence such as the letter from the Director which accompanied the bundle, he should be well familiar with most of the documents such as his own SCF, record of his screening interviews and the decisions of the Director all of which had already been made available to him in his earlier proceedings before the Director.

15.Above all, as noted in the Board’s decision, the fact is that in his appeal before the Board the applicant was still having the benefit of legal representation to assist him and that during his oral hearing he never raised any issue about the hearing bundle nor did he request for more time for his preparation.  In the circumstances I do not find anything amiss arising from any late provision of the hearing bundle to the applicant in his appeal before the Board.     

16.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.

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 17^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