Grewal Jagdeep Singh v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 920/2017 on BabelCite. This High Court CFI judgment was delivered on 31 August 2018.
1. The applicant is a 29-year-old national of India who entered Hong Kong illegally on 2 July 2016 and surrendered to the Immigration Department on 6 July 2016 when he subsequently lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbor JS over a land dispute. He has since been released on recognizance pending the determination of his claim.
Cites 8 cases
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HCAL 920/2017 [2018] HKCFI 1985 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 920 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The applicant is a 29-year-old national of India who entered Hong Kong illegally on 2 July 2016 and surrendered to the Immigration Department on 6 July 2016 when he subsequently lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbor JS 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 Andlu, Punjab, India where his parents, his wife and daughter still live. After leaving school he worked as a farmer on the farm land inherited and owned by his father. 3.One day in late 2015 one of his neighbors JS, a wealthy land owner and politically well connected, came to his home to ask his father to sell his farm land to him, and when his father refused, JS warned his father to reconsider his offer thoroughly so as to avoid any trouble from him. 4.In early 2016 on the occasions when his father ran into JS on the street, he was threatened by JS that his life would be in danger unless he agreed to sell his land to him, of which however his father did not make any report to the police. 5.One day in February 2016 the applicant was intercepted by JS and his men on the street and was told that he should convince his father to sell him his land, and when the applicant refused and explained that his family needed the land to support their livelihood, he was beaten by JS and his men with hockey sticks until he eventually managed to escape, but when he reported the assault to the local police, they failed to take any action against JS. 6.One night in March 2016 JS again came to the applicant’s home with his men and demanded that the applicant and his family made up their mind about his offer, and when it was rejected JS and his men proceeded to beat the applicant and his father and also broke the furniture of their house, and before they left JS threatened that if his offer was still not accepted he would have the applicant killed. 7.After the incident the applicant was concerned for his safety and left home to take shelter at the place of his friends who advised that he should leave India to avoid being killed by JS, and so he departed on 27 June 2016 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 28 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 8.By a Notice of Decision dated 29 May 2017 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”). 9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from JS upon his return to India as low as the evidence show that JS only intended to press the applicant’s family to sell him the land, that the dispute was of a private and personal nature without any official involvement 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other area away from his home district such as Mumbai where it would be difficult if not impossible for JS to locate him. 10.On 6 June 2017 the applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 31 October 2017 before the Board when he gave evidence and answered questions put to him by the adjudicator for the Board. On 2 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director. 11.In its decision the Board found multiple material inconsistencies in the applicant’s evidence and his non-persuasive explanations given at his oral hearing greatly undermined his credibility that it did not accept him as a credible witness, or that he or his father had a land dispute with JS, or that they had been threatened or assaulted by JS or his men, or that the applicant departed India in fear of JS and his men, and concluded that he had fabricated his claim so as to create a basis for non-refoulement and that he does not face any real risk of harm if he is refouled to India. 12.On 21 November 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 set out his grounds for his intended challenge as follows:
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.It is also wrong for the applicant to complain of no explanation being provided for the rejection of his BOR 2 risk claim, as the Director clearly did so in paragraphs 18 – 20 of his decision, while the Board also provided details for its findings and assessment in paragraphs 23 – 41 to find no credible evidence from the applicant in support of his claim including BOR 2 risk. There is therefore no basis whatsoever for the applicant to make such complaint. 17.As for ground (3) over the Board’s assessment of the effectiveness of police and law enforcement in India relevant to his claim, given its findings for the reasons noted above as to the applicant’s credibility and its conclusion that he had fabricated his claim in its entirety, of the Board was entitled to do in its evaluation of the evidence available and in the absence of any legal error being identified by the applicant in such evaluation, I do not see any basis for this complaint of the applicant either. 18.As for his complaint under ground (4) 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.Regarding his complaint of not being given any chance to provide additional information for his claim, the applicant did not explain what additional information that he had intended to provide, nor did he raise any such request at his oral hearing before the Board. As such I do not find any merit in this complaint of the applicant. 20.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. 21.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 31st 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
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Cases cited in this judgment
Further hearings and rulings under HCAL 920/2017