Sukhchain Singh v. Torture Claims Appeal Board

HCAL 1973/2018

[2021] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1973 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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 September 2016 granted; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 21 September 2016and 30 August 2018respectivelygranted.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of India who arrived in Hong Kong on 30 May 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family which objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sarawan, Punjab, India as a Majhbi Sikh. After leaving school he went to work for his maternal uncle in his shop in neighboring Village Machhike where he met his girlfriend Manpreet in 2008, but soon he found that her family was against their relationship due to their different caste, and after he had been threatened by her family and an incident in 2009 when he was beaten by her cousin Popal and followers, the Applicant therefore stopped seeing his girlfriend, but when he heard that her family had made false charges to the local police against him and that their threats had persisted, he therefore left Village Machhike in 2011 to return to his home village in Sarawan.       

3.However, as his girlfriend insisted in continuing with their relationship by maintaining contact with him, but which was discovered by her family who then resumed their threats against him, the Applicant felt it was no longer safe to remain in India, and so on 30 May 2014 he departed for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 26 August 2014 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”).

5.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 his girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between them 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 1.3 billion people spread across a vast territory of more than 2.9 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 part of India away from his home district in large cities where it would be difficult if not impossible for his girlfriend’s family to locate him.

6.On 13 September 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 20 May 2015 before the Board during which he confirmed his intention to rely on his evidence in the information already provided in the hearing bundle for his appeal and declined to give any further evidence to the Board. On 21 September 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found on the face of the information provided by the Applicant that there were several issues which arose regarding matters of fact asserted by him in his NCF and his screening interview before the Director that his credibility was a crucial issue in the determination of his appeal, but when he elected not to give evidence at his appeal hearing, the Board did not have the opportunity to test the credibility of his evidence in relation to those assertions of fact which he had made, and was therefore unable to determine whether there was a real risk that he would suffer the claimed harm if he is refouled to India that his claim for non-refoulement protection failed on all applicable grounds.

8.Meanwhile on 31 May 2017 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 30 June 2017 rejected his BOR 2 claim upon finding that he had 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.

9.On 13 July 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, for which the Board did not hold any oral hearing and proceeded to deal with his appeal in his absence and on paper, and on 30 August 2018 the Board again dismissed his appeal and confirmed the Further Decision of the Director.

10.In this decision the Board found in the absence of any new evidence from the Applicant in respect of his BOR 2 claim that there is no fresh evidence for it to consider what might lead it to change its earlier decision in relation to his general credibility, and that the Applicant had failed to establish that there is a real risk that he would be arbitrarily deprived of his life in contravention of BOR 2 if he is refoueld to India that his claim for non-refoulement protection also failed under the BOR 2 ground.   

11.On 19 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board dated 11 September 2018 which is however neither the date of the first or second decision of the Board, and no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he just stated that he is not satisfied with the decision of the Board as he cannot go back to home country where he still has problems without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.If the Applicant is to challenge the first decision of the Board in dismissing his claim under torture risk, BOR 3 risk and persecution risk, he would be seriously out of time with his application as stipulated under Order 53 rule 4(1) of the High Court Ordinance, Cap, 4 which requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made, in which case the Applicant would have been some 21 months out of time, but if he is to challenge the second decision of the Board regarding his BOR 2 claim, he would be within the 3-month period under the relevant rule.  

13.In either case the Applicant has as noted above failed to put forward any proper ground for his intended challenge. Nevertheless, given the gravity of what is at stake in his claim, and with high standards of fairness required of the Board’s determination of such claim, the court will on judicial review subject such determination to rigorous examination and anxious scrutiny when considering the Board’s findings and reasons for its determination, of which I shall start with the Board’s second decision, for which the Applicant’s intended challenge would be within time.   

14.In this decision of the Board on the Applicant’s appeal regarding his BOR 2 claim, I agree that the Adjudicator was entitled, in the absence of any further information submitted by the Applicant for such claim, not to conduct any oral hearing for his appeal (see [9] of the decision), and in dismissing his appeal, the Adjudicator gave the following reasons:

“10. I have again considered the evidence submitted by the Claimant at the earlier hearing of his appeal/petition in relation to the other applicable grounds under the USM.

11. The Claimant had not submitted any new evidence in respect of his claim under BOR 2. In consequence, there is no fresh evidence to consider which might lead me to change my decision in relation to the Claimant’s general credibility.

12. On the totality of the evidence, the Claimant has failed to establish, even to the low standard required, that there is a real risk that he would be arbitrarily deprived of his life, in contravention of BOR 2, if he is refouled to India.

13. The Claimant’s application for non-refoulement protection under BOR 2 fails and his petition is rejected. The decision of the Immigration Officer dated 30 June 2017 is confirmed.”

15.It seems therefore to me that in the absence of any new evidence from the Applicant in respect of his BOR 2 claim, the Adjudicator found it necessary or relevant to again consider the evidence submitted by him in his earlier appeal in relation to his other applicable grounds under USM so as to consider whether they would in the circumstances support his BOR 2 claim, which thus bring me to the Adjudicator’s earlier finding, if any, of those evidence in relation to the Applicant’s other applicable grounds in the Board’s first decision, of which the Adjudicator stated as follows:

“37. The core of the Claimant’s case is that he fears that he will suffer serious harm, even death, at the hands of Popal because of the Claimant’s previous relationship with Manpreet.

38. On the face of the information provided, there were several issues which arose regarding matters of fact asserted by the Claimant in the NCF and during interview. The credibility of the Claimant was a crucial issue in the determination of appeal/petition and, for that reason, I directed that a hearing be conducted.

39. On arrival in Hong Kong, the Claimant was advised by a privately retained lawyer and he has been legally represented by the DLS throughout the whole of the process of the 1^st tier determination of his application for non-refoulement protection. I am satisfied that he was aware that it was incumbent on him to submit all relevant information to establish that there is a real chance that he would be liable to suffer ill-treatment as he claims if he is refouled to India.

40. However, since the Claimant has elected not to give evidence at the hearing, the Board has not had an opportunity to test the credibility of his evidence in relation to assertions of fact which he has made. In the absence of oral evidence from the Claimant, the Board is unable to determine whether there is a real risk that he would suffer the harm claimed if he is refouled to India.

41. In the circumstances, I am not persuaded, even to the low standard applicable, that the Claimant would suffer ill-treatment of any sort if he is refouled to India.”

16.For these reasons the Adjudicator proceeded to find that the Applicant had failed to establish each of his claim under torture risk, BOR 3 risk and persecution risk, which was essentially on the basis that there was no oral evidence from the Applicant at the appeal hearing upon which the Adjudicator could “test” the credibility of his claim, notwithstanding the fact that there were other materials and information previously provided by him in his NCF and his screening interview before an immigration officer, as the Adjudicator had, as noted above, alluded to in the decision, and of which he was required to take into account in considering the appeal notwithstanding the absence of any oral evidence from the Applicant, as held by the Court of Appeal in Re Hidayah [2018] HKCA 595, CACV 160/2018, 14 September 2018, when Hon Chu JA stated in the judgment of the Court:

“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, it is relevant to also note what the Adjudicator had recorded in the Board’s first decision of the Applicant’s reasons for not giving oral evidence at his appeal hearing as follows:

“18. The Claimant stated that he did not wish to give evidence. I explained to the Claimant that, in the event that he did not give evidence, there would be no opportunity to test credibility of his assertions of fact.

19. He indicated that he understood what I had explained and, on being asked if he wished to change his decision, the Claimant said “My evidence is already in the Hearing Bundle. There is nothing new to add. You can study the situation in India from the file.”

20. I then concluded the hearing and indicated that I would determine the appeal/petition on the information available.”

18.This is in fact as what the Court of Appeal has held in Re Hidayah as noted above that the Board was required to do in considering the Applicant’s appeal, but which the Adjudicator appeared to have failed to do in respect of those materials and information provided by the Applicant in the Hearing Bundle, notwithstanding that he clearly did indicate to the Applicant that he would determine his appeal based on the available information, and which the Applicant had also clearly so requested, again as noted above, at the appeal hearing before the Board.  

19.In the circumstances, and having failed to make any finding of facts regarding the Applicant’s claim under torture risk, BOR 3 risk and persecution risk in the Board’s first decision, it seems to me it is reasonably arguable that there is no basis for the Adjudicator to dismiss the Applicant’s appeal regarding his BOR 2 claim simply because he had not submitted any new evidence in respect of his such claim in additional to those already provided by him earlier in support of his USM claim, and for which the Adjudicator had failed to give any or sufficient reasons for dismissing his appeal against the Director’s Further Decision.

20.In fact, it is in my view, for the same reasons given, reasonably arguable that the Adjudicator had also failed to give any or sufficient reason for dismissing the Applicant’s earlier appeal against the Director’s first decision, and while the Applicant would have been seriously out of time to challenge that first decision of the Board, given the fact that the Director by his subsequent invitation for the Applicant to submit additional facts which may be relevant to his non-refoulement claim on “all the applicable grounds” may arguably have allowed him to challenge the Director’s first decision regarding his USM claim, high standards of fairness would require that time should in the circumstances be extended for him to do so for his intended challenge.     

21.In the premises, and accordingly I extend time to the Applicant as regard the Board’s first decision, and grant leave for him to apply for judicial review of both decisions of the Board on the basis that the Board failed to give any or sufficient reasons for dismissing his appeals against the Director’s two decisions, and for which he shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as the respondent and the Director as the interested party.

Dated the 2^nd day of September 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