Jagsir Singh v. Torture Claims Appeal Board and Another

HCAL 687/2018

[2021] HKCFI 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 687 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent 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 last arrived in Hong Kong on 7 November 2013 with permission to remain as a visitor up to 21 November 2013 when he did not depart and instead overstayed, and it was only on 3 March 2014 that he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local leader of rival political party Shiromani Akali Dal (“SAD”). He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Saidoke, Sub-district Nihal Singh Wala, District Moga, Punjab, India. After leaving school he worked as a welder in his home village, got married and raised a family of one child.

3.In 2010 he started to support the political party Indian National Congress (“INC”) regularly attended their political activities and assisting in their local elections, including the village council election held in early July 2013 between the candidates of the two parties which was eventually won by the SAD candidate Chamkaur Singh (“CS”).

4.Shortly after the election, while the Applicant was going out with some fellow INC supporters in the village, they ran into CS and his followers who then started shooting at them with their pistols without any warning, and as a result two of the Applicant’s fellow INC supporters were killed but the Applicant managed to escape unharmed.

5.After the shootings, the Applicant reported the matter to the local police and identified CS as one of the culprits who fired the shots, but as his family feared that CS and his SAD people would take revenge against him, they advised that he should leave the country to save his life, and so on 20 July 2013 he departed India for China, and from there he had taken several trips to Hong Kong, and in his last arrival in November 2013, he overstayed and later raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 4 July 2014 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from CS and his men upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that they had specifically targeted the Applicant for harm as he was merely a supporter of INC without any official position in the party, that in the absence of any official involvement that state 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 adult with working experience to move to other area of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for CS and his men to locate him.

8.On 15 July 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 October 2014 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 January 2015 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious inconsistencies and discrepancies between the information earlier provided by the Applicant to the Director and his evidence given during his appeal hearing that it concluded as wholly unreliable, that in any event in the absence of evidence of any state or official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other area of India away from his home district without any risk of being located by CS or his men that his claim for non-refoulement protection failed on all applicable grounds.     

10.Meanwhile on 20 December 2016 the Director on his own initiative invited the Applicant to submit additional facts which he may consider 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 January 2017 again rejected the Applicant’s claim upon finding that he failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 Risk upon his return to India.

11.On 10 February 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but on this occasion he was outside the 14-day period required by section 37ZS of the Immigration Ordinance to file his notice of appeal, for which he stated in the notice that he was not aware of the rule until he was told by an immigration officer when by then he was already out of time.

12.It would also be relevant to note here that for the grounds of his appeal, the Applicant merely stated in section 2 of his notice that he was not happy with the decision, and as his life was still in danger, he did not want to go back to his home country yet.

13.In pursuance of section 37ZT(2) of the Ordinance, the Board proceeded to determine, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal, and by a decision dated 12 April 2018 the Board refused to allow his late filing upon finding no satisfactory explanation from him for his 20 days’ delay, and that there was no other reason or special circumstances to consider that it would be unjust not to allow the late filing of his notice of appeal.

14.On 20 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the further decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that he was not given legal representation from DLS for his BOR 2 claim before the Director or the Board which was procedurally unfair;

(2)  that he was not given any language assistance when he failed to understand the invitation of the Director to submit additional facts which may be relevant to his BOR 2 Risk resulting in his failure to do so and hence the rejection of his such claim was unfair and unreasonable; and

(3)  that it was procedurally unfair for the Board not to hold or conduct any oral hearing of his BOR 2 claim before rejecting his such claim.   

15.For his complaint in Ground (1) of not being provided legal representation for his BOR 2 claim before the Director or 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 367, and Re Zafar Muazam [2018] HKCA 176.

16.The Applicant already had the benefit of legal representation in presenting his case earlier under the other applicable grounds to the Director, and was able to testify and make representation in his first appeal to the Board and to answer questions put to him by the Adjudicator without difficulty. Given the fact that even on his own case that his claim does not engage the BOR 2 Risk, I do not find anything amiss arising from the lack of legal representation in his second appeal process, and I do not think this ground is reasonably arguable.

17.As for his complaint under Ground (2) of not being provided with any language assistance for his BOR 2 claim, for the same reason as noted above that his claim does not engage BOR 2 Risk, and that even now in his present application before me, the Applicant has not explained what additional or new facts or grounds he would have put before the Director or the Board that could advance his BOR 2 Risk claim, I find this complaint of the Applicant simply speculative and without basis.

18.Regarding his complaint under Ground (3) that the Board did not conduct any oral hearing for his BOR 2 claim, the fact is that he was late with the filing of his appeal that the Board as noted above [13] was required by statute to determine as a preliminary decision without a hearing whether to allow his late filing of his appeal, and given the reasons provided in his notice, the Board was entitled to find, and correctly in my view, that his delay was without a satisfactory explanation, and the fact that he also failed to advance any proper or valid grounds for his appeal other than a repeat of the same claim which the Board had already properly dealt with and disposed of in its first decision, the Board was also correct in my view to find no other reasons or special circumstances to consider that it would be unjust not to allow the late filing of his notice of appeal.

19.Even if the Applicant had not been late with his appeal, it is also my view that on the facts of his own case, this ground would still not have assisted him or advance his case any further, as the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277.

20.On the facts of the Applicant’s own case, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, and no useful purpose would have been served by a second oral hearing before the Board, in particularly when the Applicant failed to submit any additional facts or grounds he would have put before the Board at an oral hearing that could advance his case under BOR 2 risk, nor has he done so even in his present application now before me. As such and in the premises, I do not find any of his proposed grounds reasonably arguable for his intended challenge.    

21.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.Furthermore, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

23.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.

24.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 26^th day of March 2021.

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