Shavinder Kumar v. Torture Claims Appeal Board

HCAL 577/2017

[2019] HKCFI 2366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 577 of 2017

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 Bruno Chan:

1. Time be extended for the Applicant to file his late Notice of Application for Leave to Apply for Judicial Review ("Form 86"); and

2. Leave be granted to the Applicant to judicially review the Torture Claims Appeal Board ("the Board")'s decision dated 31 May 2017 on the ground that the Board had failed to give any or sufficient reason for dismissing the Applicant's appeal.

It is further directed that:

3. Applicant shall file an originating summons within 14 days of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of India who entered Hong Kong illegally on 1 February 2015 and was arrested by police on 13 February 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a Jatt family in the village over a land dispute and/or by the police over a false criminal charge against him. He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bassi Maroof Siala, Hoshiarpur, Punjab, India where his parents still live. After leaving school he farmed on his father’s land which he will one day stand to inherit after his father has passed away.

3.Adjacent to his father’s farmland lived a Jatt family who owned other land in the village but also coveted his father’s land and had always tried to expand onto it which had led to many conflicts between the two families.

4.One day in October 2014 the conflicts escalated when the Applicant’s family tried to push the Jatt family back from their farmland that a big fight broke out between them during which the Applicant’s family was attacked by knives and wooden sticks that his elder brother was stabbed in his stomach and subsequently died in the hospital.

5.Afterwards the Applicant and his father reported the matter to the police, and as a result the son of the Jatt family and two of his friends who were involved in the fight were arrested and subsequently charged for the murder of the Applicant’s father.

6.However, the son was acquitted after the trial when only one of his friends was convicted and sentenced by the court to prison for 10 years.  The Applicant’s family was displeased with the result and continued to campaign for a re-trial of the son of the Jatt family.

7.About a month after the original trial the Applicant was arrested by police after the Jatt family made a false complaint against him of drug trafficking. After being detained for two days for interrogation the Applicant was released after his parents had made bail for him.

8.As his parents became concerned for the Applicant’s safety as the Jatt family was influential in the village with political connections, they advised him to leave India, and so the Applicant went to Jalandhar and from there he departed India for China in January 2015,and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 25 May 2016 and attended screening interview with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 25 July 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 the Hong Kong Bill of Rights (“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”).

10.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 the Jatt family to the Applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that he was not pursued by the police as he was able to leave India without any problems, that it was a private land dispute between his family and the Jatt family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and 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 with work experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for the Jatt family to locate him.

11.By a Notice of Further Decision dated 21 April 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”).

12.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, the notice of which was filed on 5 August 2016, but for which he failed to attend the oral hearing scheduled on 28 April 2017 before the Board, nor did he subsequently respond to the Board’s request to submit his explanation for his absence in writing, and upon ascertaining that the letters sent to his last reported address had not been returned, the Board proceeded to deal with his appeal in his absence and on paper.  On 31 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

13.On 1 September 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but in his supporting affirmation of the same date he merely stated that he was not satisfied with the Board’s decision and that the Court should review his case.

14.The Applicant was in fact one day late with his Form 86 outside the three-month period stipulated by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A within which he was to file his application and of which I am prepared to ignore, and although he has not put forward any ground for his intended application, high standards of fairness require that the Court should nevertheless consider the Board’s decision with rigorous examination and anxious scrutiny, in particular as to its reasons for dismissing the Applicant’s appeal, which the Board gave as follows:

“ Assessment of the claims

18. While accepting that land disputes can be a common occurrence in India, the Board had concerns about aspect of the Appellant’s claims and, therefore, decided to hold an oral hearing to discuss with the Appellant issues such as the general credibility of the Appellant’s claims and the reasons why the Appellant, if his claims are credible, could not live safely elsewhere in India.

19. The Appellant has not provided any evidence to corroborate his claims made to the Department. While noting the difficulties claimants in this area can have in obtaining corroborating evidence and that the exercise of determining whether a claim is valid is one of joint endeavor, the onus is nevertheless on the Appellant to make out his case. His failure to appear at the hearing and provide oral testimony to the Board means that the Board has been denied the opportunity to question the Appellant about his claims or to test their veracity at a hearing. The Board, therefore, cannot be satisfied why he left India and whether he cannot return for the reasons claimed.

20. Without further evidence from the Appellant, the Board is therefore unable to make a finding that the Appellant was harmed and framed in a criminal case by a Jatt family because of a land dispute before he left India. Similarly, the Board is unable to make a finding that he would be at risk of harm for those reasons were he to return to India.

21. For these reasons, the Board is not satisfied that the Appellant will be harmed or killed by the Jett family or arrested by the authorities if he returns to India. He has not claimed to fear harm for any other reason.

22. For the reasons set out above, the Appellant’s application for non- refoulement protection on all applicable grounds is not made out.  The Appellant’s appeal is refused and the decisions of the Director dated 25 July 2016 and 21 April 2017 are confirmed.”

15.It seems clear to me that the Board dismissed the Applicant’s appeal essentially because it was unable to determine his credibility due to his failure to attend the oral hearing,and that in the absence of his oral testimony that it was unable to determine whether he would be at risk of harm he claimed to fear if returned to India, and was therefore not satisfied that he had made out his claim.

16.In Re Hidayah [2018] HKCA 595, where the applicant’s appeal over her non-refoulement claim was dismissed by the Board for similar reasons, the Court of Appeal in allowing her appeal and in granting leave for her to judicially review the Board’s decision stated in its judgment as follows:

“ 15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and,in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.” 

17.In the present case, as noted above the Board similarly decided against the Applicant’s appeal because it was unable to determine the credibility of his claim due to absence of his oral evidence as a result of his failure to attend the hearing, and therefore it was unable to make any finding that the Applicant was harmed and framed in a criminal case due to a land dispute before he left India, and similarly it was unable to make a finding that he would be at risk of harm for those reasons were he to return to India, but despite obviously having been supplied with a hearing bindle of all the materials and documents that were available before the Director, and of which the adjudicator had read for the purpose of the appeal (see §15 of the Board’s decision), but no explanation was given as to why it was unable to determine the credibility of the Applicant’s claim based on those materials before it, and in the absence of any adverse finding against the Applicant’s credibility, it appears to have made no analysis or assessment of his claim in its decision on the basis that his case was plausible.  

18.For these reasons I am of the view that it is reasonably arguable that the Board had failed to give any or sufficient reason for dismissing the Applicant’s appeal for the reasons stated above, having thus met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676.

19.Accordingly I extend time for the Applicant to file his late Form 86, and grant leave to him to judicially review the Board’s decision on the ground stated above, and direct that he shall file an originating summons within 14 days of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 22^nd day of November 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