Tan Poh Chye v. Torture Claims Appeal Board

HCAL 1066/2018

[2021] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1066 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 57-year-old national of Singapore who arrived in Hong Kong on 27 September 2013 with permission to remain as a visitor up to 26 December 2013 but during which he was arrested by the police on 3 October 2013 for possession of dangerous drugs for which he was subsequently convicted and sentenced to prison for 6 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Singapore he would be harmed or killed by members of a rival gang and/or by the police over his gang activities and/or involvement in a murder case. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Prince Charles Cresent, Singapore. After leaving school he joined a local gang extorting money from people conducting business activities in the red-light district in the Geylang area, and had been arrested by the police for fighting in public places and other illegal activities on various occasions.

3.On one occasion in mid-2011 the Applicant together with his fellow gang members were involved in a gang fight with members of a rival gang during which he was injured in his shoulder and fled from the scene to seek medical treatments. Later when he heard that one of the rival gang members had been killed in the fight and that the police were arresting people involved in the fight, he therefore fled to a neighbouring town in Toa Payoh to take shelter in his girlfriend’s place.

4.As he was still fearful of being arrested by the police and revenge by the rival gang members, the Applicant therefore fled to Malaysia on 6 February 2012, and from there he then travelled to Hong Kong on 13 February 2012 before moving onto Mainland China during which he was arrested for drugs related offence and was sent to prison for 8 months, and upon his discharge from prison he was then deported back to Singapore in March 2013 where he stayed in his girlfriend’s place in Toa Payoh without incidents.

5.Six months later on 27 September 2013 the Applicant again departed Singapore for Hong Kong where he was subsequently arrested by the police for drugs possession for which he was convicted and sentenced to prison for 6 months, and upon his discharge form prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 October 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews before an immigration officer due to various alleged medical reasons.

6.Whilst released on recognizance pending determination of his claim, the Applicant was again arrested by the police in December 2016 for trafficking in a dangerous drug, and on 23 March 2017 he was convicted as charged and sentenced to prison for 26 months.

7.By a Notice of Decision dated 9 March 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

8.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 rival gang members upon his return to Singapore as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any police charge or prosecution against him and that he had been able to freely depart and return to Singapore between 2012 and 2013 without any problem from the police, that in the absence of any official involvement that state/police protection would be available to the Applicant from any attack by rival gang members if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that even if he is to be arrested and charged by the Singaporean authorities upon his return that Singapore has a fair and proper legal system and constitutions to protect his rights including right to due process and fair trial, and that reasonable internal relocation alternatives are available in Singapore with a large population of 5.6 million people spread across a vast territory of more than 600 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas away from his home district such as Sembawang where it would be difficult if not impossible for those rival gang members to locate him.   

9.By a Notice of Further Decision dated 29 June 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”).

10.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 22 March 2016, and for which he attended an oral hearing on 4 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 18 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board accepted the Applicant’s claim to have been a gang member active in the Geylang area and that he had been involved in some gang fight with rival gang members and that he might have come to Hong Kong to hide from the Singaporean authorities, but found no reliable evidence that he was wanted by the Singapore authorities in relation to any specific offence, that in any event prosecution for an offence committed in 2011 would not be considered as persecution or other risks under any of the applicable grounds, that from reliable COI that administrative detention under Singapore legislation is subject to safeguards and that an order would not be made against the Applicant without legal justifications, and that any risk of revenge against him by rival gang members is considered unlikely given the fact that he had not been harmed for 2 years after the gang fight in 2011 up to his departure for Hong Kong in September 2013, and which would further be negated if he does not resume any activities as a gang member upon his return to Singapore and to stay away from the Geylang area that his claim for non-refoulement protection failed on all applicable grounds.   

12.On 11 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That he was not well educated but was not provided with legal representation for his appeal before the Board;

(2) That in the absence of evidence to prove his case the Board cannot infer that the Applicant has no case; and

(3) That the decision was made under assumptions.   

13.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 367, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representations in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended application.

15.As for his complaints under Grounds (2) and (3), they appear to me just some broad and vague assertions of the Applicant without any particulars or specifics or meaningful elaborations as to how they apply to his case, or how would they be relevant to his claim, or how would they show that the Board or the Adjudicator had erred in the decision. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find either of these grounds reasonably arguable for his intended challenge.

16.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.

17.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 parts of Singapore, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.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.

19.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 16^th day of June 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