Surinderpal and Others v. Torture Claims Appeal Board

HCAL 1079/2018

[2021] HKCFI 2960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1079 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 the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 39-year old national of India who arrived in Hong Kong on 18 May 2013 with permission to remain as a visitor up to 1 June 2013 when he did not depart and instead overstayed and was arrested by police on 29 July 2013. 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 his former business partner over some political dispute, and when his wife, the 2^nd Applicant (“A2”) and his son, the 3^rd Applicant (“A3”) also arrived in Hong Kong on 30 December 2014 as visitors and subsequently also overstayed and surrendered to the Immigration Department on 14 January 2015, and after her wife later gave birth to their daughter, the 4^th Applicant (“A4”) in Hong Kong, A1 also raised a similar claim for all of them on the same basis as his, and of which all the Applicants agreed to be jointly assessed together as a family. They have since been released on recognizance pending the determination of their claims.

2.A1 was born and raised in Ludhiana, Punjab, India. After leaving university with a degree of Bachelor of Arts, he worked in various jobs, married his wife and raised a family with their son in his home district, and in 2010 he formed a chit fund investment business with a partner Ram Gupta.

3.However, during a general legislative election in 2012, the Applicant had a serious political dispute with Ram Gupta which led to an end of their partnership, but later after Ram Gupta had sent his men to attack A1 twice resulting in him suffering from injuries which required medical treatment in a hospital, A1 fled to Barnala City to take shelter in a friend’s place, but when he heard that Ram Gupta’s men were looking for him everywhere, A1 became fearful for his life, and so on 18 May 2013 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, and later he also arranged for A2 and A3 to come to Hong Kong and raised a similar claim for them as well as A4 after her birth in Hong Kong, for which A1 completed a Non-refoulement Claim Form (“NCF”) jointly for himself and his family on 10 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 6 June 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by Ram Gupta or his men upon their return to India due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats ever been made against A2, A3 or A4 during those 1 ½ years after A1 had left India or anytime thereafter, that A1’s dispute with Ram Gupta was a private dispute matter between the two of them without any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working experience to move safely with his family to other part of India away from his home district in large cities such as Kolkata where it would be difficult if not impossible for Ram Gupta to locate them.

6.On 13 June 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1, A2 and A4 attended an oral hearing on 26 February 2018 before the Board during which A1 was appointed to speak on behalf of all the Applicants but elected not to testify after adopting their case as contained in the hearing bundle before the Board but did answer questions raised of their claim by the Adjudicator for the Board. On 4 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found some inconsistencies and exaggerations in A1’s evidence but accepted his claim of fear of risk of harm from Ram Gupta as plausible, but found even on the fact of their own case that A2, A3 and A4 have never been subjected to any threats or harm even after A1 had departed India, and that there is no evidence of any official involvement that state or police protection would be available to the Applicants upon their return to India as well as reasonable internal relocation for them to move safely to other area away from their home district without any risk of being located by Ram Gupta that their claim for non-refoulement protection failed on all applicable grounds.   

8.On 12 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision and rely essentially on the ground that they did not have legal representation in their appeal before the Board during which they were unable to follow the case due to lack of knowledge of the English language, and at the hearing of their application before me, despite invitation from the court A1 confirmed that they have nothing further to add to what they have already stated in their Form and supporting affirmation for their intended challenge.

9.While it is not entirely clear as to their level of English but it is noted from the decisions of both the Director and the Board that A1 and A2 were both graduated from university in India, and that their notice of appeal to the Board as well as their Form 86 were completed in English, while A1 affirmed to his supporting affirmation also in English without the need of interpretation, and in the absence of any further details or particulars or elaboration as to what exactly that they were unable to follow their case before the Board that they may be so prejudiced, and given the fact that they were assisted by an interpreter during their appeal hearing before the Board, I am not satisfied that there is any merits or basis in this complaint of the Applicants.

10.As for their complaint of lack of legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standards 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: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

11.The Applicants already had the benefit of legal representation from DLS in presenting their case to the Director, and that A1 was also able to make representations in their appeal hearing before the Board and to answer questions raised of their claim by the Adjudicator for the Board assisted by an interpreter without any difficulties. As such I do not find anything amiss arising from the lack of legal representation in their appeal process, nor do I find this ground reasonably arguable for their intended challenge.       

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage ChamindaPushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.  

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

14.I am of course mindful of the fact that A3 and A4, being minors now at 10 and 4 respectively, were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had been properly considered and determined by the Board in a manner sufficient to meet high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as was held to be the proper approach by the Court of Appeal (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA), in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

15.As found by the Board [22(b)] and even on the facts of their own case, A3 and A4 have never been subjected to any threats or harm even after A1’s departure from India, and indeed A1 has made no claim that any threats have ever been made against them. In fact, A4 was born in Hong Kong 3 years after A1 had left India and would not have been known to Ram Gupta at all, and as A1 did not put forward any specific ground in relation to either A3 or A4 before me, I am satisfied that the Board had properly and adequately considered their cases on all the applicable grounds as well as the viability of internal relocation to them, and that there is no underlying matter that may support minor-specific non-refoulement grounds for either of them which had not been advanced before this Court or the Board.      

16.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 irrationality 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 Applicants’ claim.  Accordingly I therefore treat the absence of legal representation for A3 and A4 in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.

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

Dated the 30^th 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