Narinder Singh v. Ms Chan Ling-ling Tracy, Esq., Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1081/2017

[2018] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1081 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 entered Hong Kong illegally on 25 August 2014 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle 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 Village Tulewal, Samana Tehsil, Patiala District, India.  After school he assisted his father farming in his own farmland in the village. In 2014 his father transferred his land to the applicant on which he would grow rice and wheat to support his family. However, his uncle who is a wealthy and influential man in the village with connections to the Shiromani Akali Dal Party owns the adjacent land and coveted the applicant’s land which thus created conflicts between the two of them.  

3.One day in mid-2014 when the applicant tried to stop his uncle and his men from moving a fence over to his land, he was beaten by them with wooden sticks until other villagers intervened during which his uncle threatened to kill him next time when he saw him.  After the incident the applicant reported the matter to the police which launched an investigation but failed to follow up with any action against his uncle.

4.Then one day in August 2014 when the applicant was on his way home from the field, he was ambushed by several men of his uncle but managed to run home.  Afterwards he fled to New Delhi, but when he was told by his family that his uncle had sent his men to look for him in the village, he decided that it was not safe for him to remain in India, and so on 21 August 2014 he departed for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 March 2016 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 16 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”).

6.In his decision the Director found the low intensity and frequency of the past ill-treatment from the uncle indicative of a small risk of harm to the applicant upon his return to India as by killing him his uncle would still not obtain the legal ownership of the land, that it was purely a private domestic dispute that state or police protection would be available to the applicant, 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 to move safely to other areas away from his home village such as New Delhi when he had stayed without any incidents before coming to Hong Kong and where it would be beyond the capability or resources of his uncle to locate him.   

7.By a Notice of Further Decision dated 30 June 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”).

8.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 30 May 2016, and for which he attended an oral hearing on 1 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that the applicant has failed to prove the primary facts of his claim, that there was no real intention for his uncle to harm or kill him, that state protection as well as reasonable internal relocation alternatives are available for him in other places in India such as Delhi or Mumbai that there is no justification to afford him with non-refoulement protection.

10.On 14 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, 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 Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh 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.  

11.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, and I do not find any basis or merits in any of them.

12.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

13.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance.

14.Besides, as noted by the adjudicator in the decision that the applicant failed to attend the originally scheduled hearing on 8 September 2017 and was therefore given another hearing on 1 November 2017, thus providing him with a further two months to prepare for his appeal which he did attend to give evidence with the assistance of an interpreter but never raised any issue about the late provision of the hearing bundle.  I therefore do not find anything amiss arising from the late provision of the hearing bundle to the applicant.          

15.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.

16.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