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

HCAL 2969/2018

[2019] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2969 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. He arrived in Hong Kong on 27 January 2014 from Macau. He was denied entry. On the same day, he applied for non-refoulement claim.

3.His reason for his application is that if refouled, he would be harmed or even killed by his uncle. They were of opposite political party’s supporters. His uncle had asked the applicant to relinquish his party and join his. The applicant refused. His uncle had threatened him that if he refused, he would shoot him. About 20 to 25 days later, his uncle together with four people came to ask him to join his party. He refused whereupon he grasped the applicant’s collar. The applicant fought to release the grasp and fell onto the ground. His uncle pulled out a gun and fired two shots into the air. He threatened the applicant that he would return again in 4 or 5 days and would shoot him if he refused. The applicant moved to his sister’s home, 50 kilometers away from his home, to live for four months. Nothing happened to him. He decided to come to Hong Kong.

The Director’s Decisions

4.The Director considered his application first in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the HKBOR”) (“BOR 3 risk”); and

c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

5.By Notice of Decision dated 30 December 2014 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

6.By a letter dated 16 January 2017, the Director further asked the applicant to supply him with further information in relation to the risk of violation of the right to life under Article 2 of Section 8 of the HKBOR (“BOR2 risk”).

7.Since the applicant had provided no further information to the Director, the Director, by Notice of Further Decision dated 6 February 2017 (“the Director’s Further Decision”) rejected his claim on the ground that his claim was not substantiated under BOR 2 risk.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator

9.By Decision 4 January 2017 and (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence. It did not challenge the veracity of the incidents alleged by the applicant, i.e. he was asked to join his uncle’s party; he was grasped by the collar by his uncle and he was threatened by his uncle by shooting his gun in the air. However, it found that such incidents did not amount to torture within the context of the Torture risk, the BOR 3 risk, or well-founded fear of being persecuted under the Persecution risk. The Board had taken into consideration the issues below.

1.     There was no evidence that his uncle was acting for the government [31].

2.     State protection should be available to the applicant although the Country of Origin (“COI”) showed that police in India were corrupt. However, the COI also showed that there were channels to lodge complaints against the police [36].

3.     There was no evidence to show that the applicant would be in danger of being subjected to torture or would be at risk personally [42].

4.     In view of the low level of the applicant in his own party, the Board did not believe that his uncle would use such effort to recruit him [44].

5.     He was able to go through the Immigration of India without problems, which showed that he was not a target of the Indian government [44].

11.The applicant also appealed to the Board against the Director’s Further Decision. But he was out of time. By another Decision dated 21 December 2018, the Board dismissed his appeal without hearing for the reasons below.

12.The Board did not accept that the applicant did not receive the Notice of Further Decision from the Director as he was unable to give any explanation for not receiving the letter at his residential address. It found that the applicant had no satisfactory explanation for the delay in filing the Notice of Appeal.

13.However, the Board also said that in case there might be other relevant matters of fact which might explain his delay in filing the notice, since the applicant had not given further information in respect of the BOR 2 risk as requested by the Director, the Adjudicator had considered all his evidence and found that there was no merit on the BOR 2 risk [12].

14.The Board had, therefore, considered the merits of the applicant’s case in relation to BOR 2 as required by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019.

Application for leave to apply for judicial review

15.In his Form 86 dated 24 December 2018 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decisions and the Director’s Decisions respectively.

16.In his affirmation in support of his application, the applicant relied upon the grounds below. For the reasons below, I shall focus on the grounds against the Board’s Decisions.

1.     There was no hearing for his appeal against the Director’s Further Decision and, in particular, the Board refused to grant him the extension of time for late filing without giving him an opportunity to explain.

2.     There was no legal or language assistance for him.

3.     It was unreasonable for the Board to make findings on his credibility without hearing of the BOR 2 risk.

4.     It was unreasonable for the Board making decision on BOR 2 risk without hearing his explanation of being late.

5.     The Board’s Decisions were not read to him and there was no translation for him. Although he had obtained assistance from his friend, he was not certain if his friend had translated everything to him.

DISCUSSION

The Director’s Decisions

17.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

18.The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decisions

19.The applicant appeared before me. He said that he was able to speak freely before the immigration officer and the Adjudicator at the hearing.

20.The Board was entitled to assume that the applicant had received the BOR 2 letter from the Director (“the Director’s Further Decision”) under section 37 ZV of the Ordinance:

Notices

(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—

(a)      …;

(b) by leaving it for the person, or by sending it by post addressed to the person—

(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant to the Director or the Appeal Board under section 37ZA(2);

21.The Adjudicator must have considered section 12 of Schedule 1A of the Ordinance and decided to assess his appeal without a hearing. The Board was entitled to do so under the Ordinance. The Board did not challenge his credibility as to the incidents, save that it had reservation that his uncle would be interested in him, which is only a minor issue in relation to his credibility. Its assessment of his case was on the basis that what he said were accepted.

22.The Court of Appeal held in Re: Ahmed Syed Rafiq [2018]HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation at every stage of the proceedings as he had obtained free legal representation at the screening stage.

23.The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 at §16 that high standard of fairness does not require provision of language assistance or translation to the applicant at all stages of the proceedings. Of course, the court usually provides interpretation service in the court hearings.

24.For the reasons above, it is obvious that all of the applicant’s grounds fail.

25.The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.

CONCLUSION

26.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

27.The applicant has also written to this Court that he wishes to withdraw his application so that he might return to India as soon as possible.

Dated the 16^th day of October 2019

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