Re Harvinder Singh

HCAL 33/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 33 OF 2016

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D E C I S I O N

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Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director’s Decision”) and that of the Adjudicator of the Torture Claims Appeal Board (“the Adjudicator’s Decision”) dismissing the Applicant’s non-refoulement claim.

2.There 3 grounds relied on in respect of both Decisions: (i) failure to consider state acquiescence; (ii) failure to consider the relevant Country of Origin Information (“COI”); and (iii) falling below the high standards of fairness required by the Wednesbury test.

Immigration history

3.The applicant is an Indian national who was born on 28 March 1989 in India.  He was living with his family in Village Kakowal, Ludhiana, Punjab in India before he came to Hong Kong.

4.The applicant says that he faced risks to his life and limb due to a dispute between himself and members of the Shiromani Akali Dal (“SAD”).

5.He took a flight from India to Thailand, then to Macau.  He arrived in Hong Kong on 13 March 2014 and lodged his non-refoulement claim on the same day.

6.The Director rejected the applicant’s non-refoulement claim.  The Adjudicator dismissed the applicant’s appeal therefrom.

Factual background

7.The applicant’s non-refoulement claim was considered on all applicable grounds by both the Director and Adjudicator, ie

(a)   Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

(b)   Risk of torture of cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 risk”); and

(c)    Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution risk”).

8.The applicant has relied on 3 incidents before the Adjudicator.

9.The 1^st incident happened in about March 2012.  On the day of the election for the Legislative Assembly, the applicant and others tried to stop vote rigging by SAD in favour of Dhillon, an independent candidate of SAD.  A fight broke out.  Supporters of SAD used weapons to attack the applicant and others.  The Senior Constable of the Basti Jodhewel Police Station refused to let the applicant and his companions file a report about the incident, allegedly on the instructions of Dhillon.

10.The 2^nd incident happened in about October or November 2012.  The applicant and others were attacked by armed SAD members.  One person on the applicant’s side was shot and injured.  The applicant, amongst others, gave statements to the police, which led to a court case filed against the perpetrators.  About 15 days after the shooting, an allegedly false charge of trespass under the Indian Penal Code was lodged by a SAD member against the applicant.  One day in about May 2013, the applicant saw members of SAD asking for his whereabouts in the market.  He was advised to leave the country.  He went to Thailand but returned to India as he failed to find a way to seek protection in Thailand.  After his return, he hid in New Delhi until he attended court hearings in Ludhiana in January 2014.

11.The 3^rd incident happened in about February 2014.  After attending a wedding, some SAD members shot at the applicant and his companions.  The applicant managed to escape but his cousin, Satwinder was shot dead and another cousin Jaspreet’s thumb was injured by a gunshot.  The police arrested one Kapil for the murder of Satwinder.  Advised by his family that it was no longer safe for him to remain, the applicant left India again.

Grounds for the Adjudicator’s Decision

12.The Adjudicator identified 4 core matters in the applicant’s case, ie that:

(i)   The applicant had been targeted by members of SAD since the election in March 2012 and they were out to kill him;

(ii)   The sustained pursuit of the applicant has continued;

(iii)   The applicant would not be protected by the authorities if refouled;

(iv)   The applicant would be at risk because he failed to answer to his bail.

13.Having guided herself that inconsistencies may not be fatal to the applicant’s claim so long as the centrepiece of the story stands: Chiver (Asylum; Discrimination; Employment; Persecution)(Romania) [1994] UKIAT 10758, 24 March 1994, the Adjudicator found that the applicant’s assertions on the material aspects of his claim could not be relied on.  Her findings on lack of credibility and reliability of material facts adduced by the applicant applied to all of his risk claims.  She also found that the elements of each risk have not been proved to the proper standard.  Her findings are summarised as follows:

14.In respect of the 1^st core matter, she found that there was no substance to the allegation that the applicant had been targeted by Dhillon and members/supporters of the SAD because of his election or campaign skills (or lack of them).

15.The 2^nd core matter was not supported by evidence.

16.On the 3^rd core matter, the Adjudicator found that there was no objective evidence to support the assertion that police and other authorities were under the SAD’s influence, or that the Senior Constable or local police was in cahoots with Dhillon and willing to do the bidding of the SAD party.  She found that the local police operated independently.  She did not accept that the authorities had been biased against the applicant.  There was nothing to suggest that the state would be unwilling or unable to provide protection in future.

17.On the 4^th core matter, the Adjudicator held that as the applicant was admittedly in breach of bail conditions, he must be prepared to face the consequences.  Persons fleeing from the consequences of a common law offence are not normally refugees and that a refugee is not a fugitive from justice.  If the applicant is punished by the court for failing to answer to his bail, the punishment received cannot be regard as persecution.  Even if the charge against him was without substance or merit, there was nothing to suggest that the applicant would be subjected to ill-treatment, would not be protected by the authorities or would not be treated fairly by the court in future. 

18.In respect of the torture risk claim, the Adjudicator found that the applicant did not meet the definition of torture in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) adopted under section 37U of the Immigration Ordinance Cap 115.  She found that even if Dhillon was assumed to be a public official, there was no evidence of his acting in an official capacity or on behalf of the state; or that there was participation of a public official in all the incidents.  There was no reliable evidence of state consent or acquiescence, lack of due diligence on the part of the Indian authorities or anything to show that the Senior Constable’s refusal to file a report was due to SAD’s influence.

19.Although the applicant had sustained bruises in the fight in the 1^st incident, there was no evidence that he had been physically injured in the 2^nd and 3^rd incidents. Even if he could have experienced mental suffering, the degree could not reach the requisite severity.

20.In respect of the BOR3 risk claim, the Adjudicator noted that unlike CAT, it would be possible for a private citizen of India to commit acts of torture but the standard of proof is that there must be substantial grounds for believing that the applicant would be subjected to a real risk of ill-treatment if refouled to India: Soering v UK, Application No 14038/88; [1989] 11 EHRR 430; Ubamaka Edward Wilson v Secretary for Security & anor, FACV No 15 of 2011, 21 December 2012, §172.

21.It was found that the applicant had never been inflicted with any physical pain or suffering or that any suffering reached the requisite degree of severity.  His experience fell short of the 5 techniques, ie wall-standing, hooding, subjection to noise, deprivation of sleep and deprivation of food and drink: Ireland v UK, (5310/71) [1978] ECHR 1, (18 January 1978).  It would not be likely for the applicant to face a genuine and substantial risk if refouled.  There was nothing to show why the SAD would wish to pursue and ill-treat him upon return.

22.In respect of the persecution risk claim, the Adjudicator guided herself that it has to be shown whether the applicant had a well-founded fear of being persecuted for one or more of the 5 reasons under the Refugee Convention, ie race, religion, nationality, membership of a particular social group or political opinion.  The Adjudicator considered the fear of persecution for the reason of political opinion as none of the others were appropriate.  She asked herself this question: “What is the real cause or the effective cause of the ill-treatment?  Is it one of the convention reasons?”  See Sepet & anor, R (on the application of) v Secretary of State for the Home Department [2003] UKHL 15, 20 March 2003, §22, Lord Bingham.  Assuming the 2^nd and 3^rd incidents did occur as alleged, the real or effective cause of the ill-treatment was not related to the political opinion held by the applicant since many months had elapsed between any political activity performed by the applicant during the 2012 election and what the applicant did could not possibly be perceived to be a challenge to government authority.

23.Internal relocation only arose if the applicant has established a real risk of persecution in his home area, which he has failed to.  As he was not a refugee, the Adjudicator did not consider it necessary to deal with the possibility of his movement elsewhere.

Legal principles on application for leave to apply for judicial review

24.The burden is on the applicant to show arguable grounds for judicial review: Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, at §§14-17.

Legal principles on dealing with a non-refoulement claim

25.A person determining a Convention claim has to display a high standard of fairness. It does not involve adopting an attitude of sitting back and putting the person concerned to strict proof of his claim but to adopt an active role in screening the claim: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; ST v Betty Kwan, §39.

26.The process of determining a claim is a joint endeavour requiring the Director or the Adjudicator to take the initiative in probing into an answer or an omission of the Applicant: CH v Director of Immigration [2011] 3 HKLRD 101, §47; TK v Jenkins & anor [2013] 1 HKC 526, §§24 and 25.

27.The fact that the burden of proof is on the applicant and the fact that he has not presented any further information do not absolve the Adjudicator’s duty of joint endeavour: Shafqat, Ali v Betty Kwan & ors, unreported, HCAL 74/2012, 17 December 2013, Mimmie Chan J at §36.

Leave to apply for judicial review against the Director's Decision

28.The Director's Decision was given on 15 August 2014.  By the time the applicant filed the Form 86 in this case on 1 February 2016, he was way beyond the 3 month time limit for applying for leave: Order 53, rule 4(1) of the Rules of the High Court.  The applicant has given no explanation for the 14 month delay.

29.To seek judicial review, a person has to exhaust alternative remedies: Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27.

30.The applicant has already resorted to the alternative remedy of appealing to the Torture Claims Appeal Board (“TCAB”).

31.The Adjudicator of TCAB does not discharge an appellate role. Her determination of a petition involves a rehearing of the matter determined by the Director below: AM v Director of Immigration & anor [2014] 1 HKC 416 at §28, McWalters J (as he then was).  It requires a fresh and independent decision of the claim by the Adjudicator: X v TCAB & anor, HCAL 143/2013, 4 September 2014, Zervos J, §29.

32.The Adjudicator has followed the legal principles in the preceding paragraph.  All the grounds now relied on by the applicant in this leave application have been considered by the Adjudicator.

33.In the premises, I see no reason for extending time for the applicant to apply for judicial review of the Director's Decision.

Leave to apply for judicial review of the Adjudicator's Decision

34.The Court of First Instance on a judicial review of the decision of the Adjudicator is not to determine the merits of the claimant’s failed non-refoulement claim, or sit on appeal.  It only plays a supervisory role to ensure that there had been no deficiency in the process that the claimant had undergone which had resulted in his claim being refused: AM v Director of Immigration, at §31; TK v Jenkins & anor, HCAL 126/2010, 21 October 2011, Lam J (as he then was), at §40.

35.The crucial issues are: whether the Adjudicator committed any error of law in her interpretation of the relevant Convention; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and whether the substantive decision satisfied the enhanced Wednesbury test: TK v Jenkins, §87.

36.The enhanced Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Prabakar, §45; AM v Director of Immigration, §34.

Analyses of the intended grounds for judicial review

37.Although the 3 grounds set out in paragraph 2 above are directed at the Director's Decision, the applicant also says that the Adjudicator has shown indifference and agreement towards the Director’s Decision and has erred in law in a similar way.

38.I am unable to agree.  The Adjudicator has conducted an oral re-hearing and made independent findings of facts instead of adopting the Director’s Decision.  Far from showing indifference, she has analyzed each of the 3 claims, properly directing herself on the law before coming to her conclusions independently.  There was no challenge to her finding of facts despite a broad brush statement that she had erred in law as the Director.

39.The Adjudicator has found against the applicant on credibility and the 4 core matters.  The applicant was simply not the subject of pain and suffering to the requisite degree nor subject to persecution for a Refugee Convention reason.  There was simply no factual foundation on which to proceed further.  On this ground alone, this application should be dismissed.  However, I will deal with each ground briefly for completeness’ sake.

Failure to consider state acquiescence or extended state acquiescence

40.The applicant claims that the Director has failed to appreciate the presence of state acquiescence in his case.  This could be seen by the refusal of the Senior Constable in filing a report and failure of the police to take follow up action after the fight between the applicant and the SAD members.  A fight was a cognizable offence of which no police office had the authority to refuse registration of a case.  A false report was also made against the applicant and his 2 cousins and warrants of arrest were issued against them despite the lack of evidence.  The applicant says that the state was rendered liable to him for failing to provide reasonable protection for its citizens by the inaction of its public officials. 

41.He also says that even if the problem between him and the SAD members was solely private in nature, the State could be accountable for actions of non-state actors through the concept of extended state acquiescence.

42.In Re MI,CACV 69/2014, §38, McWalters JA explained the concept of state acquiescence:

“... it makes the State liable not just for what it did and not just for what its local public officials may have deliberately chosen not to do, but, in certain circumstances, for also what it, the State, through its public officials, should have done but failed to do, in respect of the actions of these non-State Actors.”

43.Paragraph 18 of the General Comment No. 2 of UNCAT also provided guidelines to the interpretation of the idea of extended state acquiescence:

“The Committee has made clear that where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts.

Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilities and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission.”

44.It was true that the Adjudicator did not quote the principle in Re MI, §38.  However, the present case is distinguishable from Re MI, where the issue of credibility was put aside by the Director and the Adjudicator there.  Here, there were express findings by the Adjudicator, in particular on the 3^rd core matter and those in paragraphs 18-19 above, rejecting the factual foundation of the applicant’s case.  There was simply no basis to go forward to consider extended state acquiescence and related COI.

Failure to consider the relevant COI

45.The applicant asserts that the Adjudicator wrongly concluded that that the applicant’s feared ill-treatment did not fall within the definition of persecution.  Witnessing the death of his own cousin due to the attack of the SAD members was reasonably likely to affect the applicant in such a way as to amount to prosecution of him.

46.I am unable to agree.  There was nothing to suggest that the Adjudicator’s findings were perverse, had taken into irrelevant matters or failed to take into account relevant matters.

47.Further, the applicant seems to suggest that the Adjudicator failed to grant sufficient weight to evidence that the local police force failed to provide reasonable protection or that India did not have a sound and fair judiciary system to enable the applicant to receive a fair trial regarding the false charge against him.

48.The applicant referred to an article called “India Legal System – Problems may not end soon?” on 12 July 2012.  It referred to rich people being treated specially by the system, where everyone was afraid of police authorities, police could solve any problem if they were paid, and it was difficult to find competent lawyers available to the common man.

49.There was no evidence but I shall assume that the article was placed before the Adjudicator. I repeat my observations in paragraph 44 above.  Specifically, the applicant has not submitted before the Adjudicator that a consistent pattern of gross, flagrant or mass violations of human rights existed in India, or that he was personally at risk.

Falling below the high standards of fairness required by the Wednesbury test

50.This was a tag-on to the previous 2 grounds and has no merits for reasons already given.

51.I have also considered other authorities referred to in Form 86.  Suffice to say that they do not affect the conclusions in this decision.

Conclusion

52.I am unable to find any error of law or in the procedure before the Adjudicator. Her rehearing exercised a high standard of fairness.  None of grounds are arguable.  I dismiss the application for leave.

The applicant appeared in person