Mittal Sanjeev v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 832/2017

[2018] HKCFI 2056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 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 37-year-old national of India who arrived in Hong Kong on 24 December 2008 with permission to remain as a visitor up to 8 January 2009 when he overstayed until arrested by police on 22 January 2009.  After being referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Shiromani Akali Dal (“SAD”).  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised as a Hindu in Ludhiana, Punjab, India.  After leaving school with a diploma in mechanical engineering, he worked as a quality controller and an engineer in various companies in Punjab, and joined the political party Janata Dal (“JD”) in 1999 regularly attending their meetings and rallies and generally promoting the party.

3.One day in April 2008 while he and a fellow JD member were putting up their party’s posters in the city, several SAD supporters passed up in a jeep and demanded that they took down their posters, and when they refused the SAD supporters got off their jeep and attacked them with knives and sticks that the applicant was knocked unconscious while his fellow member was stabbed in the stomach.

4.When the applicant regained consciousness he found himself being tied up and kept in an unknown place for more than 40 days with little food.  Eventually he managed to escape and made his way back to his home in Ludhiana but did not report the matter to the police.  As he was afraid that the SAD supporters would still be looking for him and felt that it was not safe to remain in India, he therefore made arrangements to leave India which he did on 20 December 2008 for Hong Kong via Thailand, and after overstaying his visiting visa he lodged his non-refoulement claim with the Immigration Department.

5.Whilst being released on recognizance, he converted into Christianity in January 2011 and married a Hong Kong resident in September of the same year.  After obtaining legal representation from the Duty Lawyer Service and upon the commencement of the unified screening mechanism when his torture claim was taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 3 July 2014, and subsequently attended screening interview before the Immigration Department during which he also disclosed in his claim of his fear of being harmed by the Hindu community for abandoning Hinduism if refouled to India, as he was told by his family that in April 2015 some armed men had come to his home in India looking for him after hearing about his conversion to Christianity.

6.By a Notice of Decision dated 15 December 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 took into account all the relevant circumstances of the applicant’s claim and assessed that the risk of harm from the SAD people or the Hindu community to him as low, that the behavior of the SAD people show no real intention of harming or killing him or still targeting him after all these years, that objective Country of Origin Information (“COI”) show that Christians are protected by the constitution and laws in India, that in the absence of any official involvement in either threats that state or police protection would be available to the applicant if resorted to, and that reliable COI also show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people, of which more than 28 million are Christians, 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 and well-educated man with work experience to move to other areas away from his home district such as in large cities like Delhi where it would be difficult if not impossible for the SAD people to locate him, or in the north-east and southern states of Kerala, Tamil Nadu and Goa with large populations of Christians.     

8.By a Notice of Further Decision dated 1 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any 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”).

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 28 December 2015, and for which he attended two oral hearings on 29 March 2017 and 7 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the applicant’s claims in particular his involvement in politics and his subsequent kidnap defy logics and have no reasonable credible footing to rest upon, that it was difficult to accept that he was in great fear of the SAD people or that he had been ill-treated as alleged, that there were serious discrepancies in the two letters produced by him purportedly written by his sister and his father about the armed men looking for him in his home in India that it did not find them reasonably credible, that in any event objective COI show that reasonable state or police protection would be available to the applicant if resorted to, and concluded that he has failed to establish his claim on all applicable grounds.

11.On 1 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 set out his grounds for his intended challenge as follows:

(1)  that he was not provided any legal assistance or representation in his appeal before the Board; and

(2)  that it was unfair to reject his BOR 2 risk claim as he was unable to read or write English and without any assistance from lawyer or interpreter he did not know how to submit any additional facts or make any further submissions on his BOR 2 risk claim.   

12.For his complaint in ground (1) of not being provided with 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 with the assistance of an interpreter 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 able to submit any additional facts or presentation regarding his BOR 2 risk claim without legal assistance or interpreter, the fact is that he never raised any issue with it more than four months later in his two oral hearings before the Board, and if indeed he did have any additional facts or further submissions to make he would have done so during those hearings or anytime thereafter during the appeal process before the Board, but which he never did.  Even now in his leave application including an oral hearing before me, he did not make any further representation about his BOR 2 risk claim. In the circumstances and in the absence of any response from the applicant to the earlier invitation for him to submit any additional facts relevant to his BOR 2 risk claim, the Director was entitled to assess such claim of his based on all the representations already made by and on his behalf as well as all the available evidence, which the Director did in his further decision.

15.I also note that all the court documents including letters from the applicant were written in English which indicates either that he is familiar with the English language or has access to such language assistance, while his affirmations were also in English and did not contain any interpretation clause, which again suggests that he can understand the English language without the need for interpretation.  As such I do not find any arguable basis to challenge the fairness of the process on the ground of lack of legal or language assistance in respect of his BOR 2 risk claim.

16.As regards the applicant’s argument in his affirmation that as he has now formed a family in Hong Kong with a stepson, and as his wife has applied for him a dependent visa with the Immigration Department, his refoulement to India now would rob his wife a husband and his stepson a father, I note that this argument was never run in his process before the Immigration Department or the Board, and that in any event it is not arguable under any of the applicable grounds in a non-refoulement claim.

17.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.

18.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 September 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