Bal Swaran Singh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2573/2018

[2020] HKCFI 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2573 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.The applicant was absent for a hearing on 15 May 2019, as a result of which his application was dismissed by an Order of the same date (“the said Order”) for want of prosecution.

2.By summons dated 10 June 2019, the applicant applied for extension of time for his appeal against the said Order. His summons was fixed to be heard on 17 July 2019.

3.The applicant appeared before me. He explained that he did not receive the court’s notice of hearing. The envelop of the letter sent to him was marked with incomplete address. His address was checked in court. It appeared that the address is same as the court’s record. In the circumstances, I accepted his explanation. I further directed that he should make enquiry in respect of his address with the Post Office. The court will call him to come to collect the letter later. Now I have been informed that he had rectified his address and the new address had been given to my clerk. Further correspondence will be sent to this new address.

4.I accepted his explanation and I set aside the said Order under O.32, r. 6 of the Rules of the High Court (“RHC”). I shall now proceed to hear his application.

5.Torture Claims Appeal Board (“the Board”) had made two Decisions, one dated 12 April 2017, the other dated 19 October 2018. I note that the applicant is out of time to make this application in respect of the first Decision, but he is within time in respect of the second Decision. Having consider the reasons below, I decided to extend time for the application for the first Decision to coincide with the time for the second Decision.

a. The hearing of the first Decision took place on 23 May 2016. The first Decision was dated 12 April 2017. On 5 May 2017, the Director sent a letter to the applicant telling him that BOR 2 would also be considered and he had the opportunity of making additional information to him for his consideration. It was therefore reasonable for the applicant to think that the whole screening process had not been finished until BOR 2 risk had been determined.

b. In any event, if these two Decisions were considered separately, the second Decision cannot be considered independently without reference to the facts set out in the first Decision.

c. In substance, the two Decisions should be considered as a whole as it is a unified screening mechanism.

d. There is no prejudice to public interest in issue.

e. For better case management, even if there were two separation applications, they should be consolidated to be heard together. (O.1B 1. (2)(f) RHC).

The applicant

6.The applicant is an Indian national. He came to Hong Kong on 16 January 2014 as a visitor and was permitted to stay until 30 January 2014. He overstayed. On 6 March 2014, he surrendered himself to the Immigration Department and lodged a non‑refoulement claim.

7.In support of his claim, he said that if refouled, he would be harmed or killed by P.P. Choudhary, the Minister of Bhartiya Janta Party (“BJP”) and a Member of the Parliament as he was involved in a fatal motor vehicle accident in India which cause the death of Choudhary’s son and nephew.

8.He claimed that in November 2013, when he was driving a lorry delivering goods on the expressway, he hit a deer. He stopped his lorry. There was a car following his lorry and it hit the back of his lorry. There were four people in the car. The driver and the passenger next to him died immediately. The two rear passengers were badly injured. He was scared and left the scene, leaving his lorry on the expressway. He was informed by his friend that those who died were Choudhary’s son and nephew. Choudhary vowed that he would do the same to the applicant. He was scared because Choudhary was a powerful figure in that area. He had attempted to mediate with Choudhary. But his friend told him that Choudhary refused to mediate. He left India and first went to Macau, then to Hong Kong.

The Director’s Decisions

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

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

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. 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”).

10.By Notice of Decision dated 27 February 2015 (“the Director’s Decision”) in respect of the Torture risk, the BOR3 risk and the Persecution risk, and Notice of Further Decision dated 24 May 2017 (“the Director’s Further Decision”) in respect of the BOR 2 risk, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decisions

11.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 23 May 2016 in respect of the Director’s Decision

12.By Decision dated 12 April 2017 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

13.By another Decision dated 19 October 2018 (“the Board’s Further Decision”), the Board rejected his appeal and confirmed the Director’s Further Decision. This Further Decision was made without a hearing.

14.The Board considered the applicant’s evidence. It refused his appeals because it found that he was not a reliable witness and that there was no evidence to support his claim for the reasons below [18].

a. His evidence was multiple hearsay.

b. His evidence on the fact of the case was unreasonable and unbelievable.

c. There was no evidence on the identities of the deceased in the car.

d. All facts were hearsay evidence and could not be relied upon.

e. The facts he alleged were only his speculations.

f. He had given contradictory evidence.

g. He did not ask for non-refoulement protection at the first available opportunity after he had arrived in Hong Kong.

h. Internal relocation was an option open to him [36].

Application for leave to apply for judicial review

15.He filed Form 86 for leave to apply for judicial review of the Board’s Decision and the Board’s Further Decision.

16.In his affirmation in support of his application, the applicant relied upon the grounds below.

1. He was not legally represented for his appeal.

2. The Board relied on the source of news which is not officially recognized, cases which are outdated to make speculation that he would be safe to return to India.

3. There was no interview for him on BOR 2 risk and he did not have the chance of expressing his views.

DISCUSSION

17.The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories fully before the Adjudicator. He considered that he had had a fair hearing before the Board.

18.The Court of Appeal held in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that he has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ground (1) fails.

19.The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

20.It is quite clear that the Board had rejected the facts in support of his claim. There is no factual basis for his claim.

21.Ground (2) is only bare allegation. He has not set out what news or cases which would cause prejudice to his case. The Board did not rely upon these materials to determine whether his evidence as credible.

22.The Director had requested the applicant to give additional information for the assessment of BOR 2 risk in his letter dated 5 May 2017. But he did not give any further information to the Director. They Director was entitled to make the assessment without an interview.

23.Under section 12 of Schedule 1A of the Ordinance, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal can be justly determined without a hearing. Since the applicant had not given additional information, it is reasonable to form the view that no hearing should be required for its assessment of his BOR 2 risk. Ground (3) fails.

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

CONCLUSION

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

Dated the 23^rd day of January 2020

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