Chambial Kapil v. Torture Claims Appeal Board and Another

HCAL 256/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 256 OF 2015

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J U D G M E N T

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Introduction

1.On 18 December 2014, the Director of Immigration rejected the Applicant’s non-refoulement claim under the Unified Screening Mechanism (“USM”).  The Applicant appealed/petitioned to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“The Appeal Board”) and the Adjudicator[1] refused his appeal/petition on 5 June 2015 (“the Decision”), following two hearings held on 12 March[2] and 22 April 2015. 

2.This is the Applicant’s application for leave to apply for judicial review against the Decision.  The Form 86  was filed on 22 December 2015 and hence, the application was out of time for over 3 ½ months[3].

The Applicant’s claim

3.The Applicant is an Indian national.  He was born on 5 December 1989 in the town of Lahalpur, Kangra in Himachal Pradesh, India and is single.  

4.The Applicant arrived in Hong Kong on 2 November 2014 from Macau.  He was refused to land.  The following day, on 3 November 2014 he arrived again in Hong Kong from Macau and was again refused permission to land, whereupon he lodged a non-refoulement claim. 

5.The Applicant’s case is that, he has been a supporter of the political party known as Bharatiya Janata Party (“BJP”) since around April or May 2014.  He fears for his life and limb should he be forced to return to India due to the conflicts between himself and the members of the main rival political party known as the Indian National Congress (“INC”).

6.The Applicant’s case has been succinctly summarized by the Adjudicator in her written Decision as follows:

(a)  A group of 3 men went to his grocery store in about April or May 2014 and demanded that he join the INC, telling him “you should support us, otherwise you would be in trouble”.  The Applicant did not report this incident to the police.

(b)  One day in May 2014, the same 3 men approached the Applicant when he walked home through the forest.  Without saying a word, the 3 men started to attack the Applicant with kicks and punches.  He managed to escape from them.

(c)  The Applicant went to the Haripur Police Station the next day to make a report.  The police said that they could not do anything because he did not know anything about the 3 men.

(d)  The Applicant then had his injuries treated by the village doctor Krishan Kant.

(e)  One day in about July 2014, the Applicant found the 3 men waiting for him when he got off a bus.  They were with 4 other men, and all were armed with baseball bats.  They attacked the Applicant saying “you better leave this place otherwise we would kill you”.  The Applicant managed to escape and hid at the home of his friend Vikram.

(f)  The Applicant did not make a report to the police about this incident; nor did he have his injuries seen to.

(g)  The Applicant then hid in the home of his friend Anil in Mohali for 3 months.

(h)  One day in October 2014, the Applicant saw some of the men who had attacked him.  He ran back to Anil’s house.  He was advised by Anil that the men may have come to Mohali to search for him.

(i)  The Applicant believes that he has been targeted by members and/or supporters of the INC because he is young and dedicated, therefore the INC is keen on recruiting someone like him.

The Decision

7.In her written decision, after reviewing the Applicant’s evidence the Adjudicator commented that:

“24.  I have carefully considered all the evidence, and whilst I accept that the [Applicant] may have been an ordinary member of the [BJP], I do not accept that he was persecuted in the manner alleged, for the following reasons. The [Applicant’s] contribution to his party was limited to the distribution of pamphlets. He showed a limited knowledge of political matters. His work as pamphlet distributor would not be the reason for the INC to target him for ill-treatment. It is against common sense to target a distributor of pamphlets. The alleged ill-treatment did not begin until after the elections. If the opposition wanted to prevent him from helping the BJP, logic dictates that they should have tried to stop him from distributing pamphlets before the election. There was no good reason for the INC supporters to chase him around India to persecute him [in] 2014 when the next general election will not take place until 2019. I found his political work to be an inadequate reason for such a reaction from the INC

25.  His allegations against the police in Haripur Police Station were extremely general and lacking in detail.  I found the allegations to be simplistic and unpersuasive.  In any event, from the information that the [Applicant] provided, the police would not be reasonably expected to take any meaningful action.  The [Applicant] had not given the police any names, addresses or other details to enable them to launch an investigation.” 

8.The Adjudicator has the following findings:

“26.  I did not accept that the [Applicant] was threatened or harmed in 2014, or following the election, by the INC members/supporters.

27.  I did not accept that the [Applicant] was of interest to either the INC or the authorities in the past, therefore I did not accept that if he returns to India [he would be] harmed in any way by the INC. In any event, the BJP won the 2014 general elections in a landslide victory. With his own party securely in power for the next few years, there is no good reason for him to fear harm from INC.

28.  I found that based on the [Applicant’s] low-level profile as an ordinary member of the [BJP] who was not politically active until April or May 2014, the [Applicant] would not face a real chance of persecution for reason of his [BJP] political opinion, now or in the reasonably foreseeable future if he is refouled.

29.  The findings above will be applied to the individual non-refoulement grounds under the USM.” 

9.The Adjudicator reached the following conclusions:

“Persecution Risk

41.  For the reasons stated, the [Applicant] has failed to show that he had a well-founded fear of being persecuted for a convention reason. I find that his claim for protection refoulement under this ground fails.

BOR 3 Risk

42.  The [Applicant] has not shown that there are substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of prohibited treatment – namely CIDTP. The evidence adduced by the [Applicant] discloses no substantial grounds for so believing. I find that his claim for protection from refoulement under this ground fails.

Torture Risk

43.  For all reasons given, I find that none of the elements in the definition of torture in section 37U of the Ordinance[4] have been satisfied.  In the circumstances I find that his claim for protection from refoulement under this ground fails.”

10.As a result, the Adjudicator affirmed the decision of the Director of Immigration. 

The Applicant’s grounds of judicial review

11.The Applicant has advanced 4 grounds of review in his Amended Form 86 which are as follows:

(1)  Procedural Impropriety (Failure to Conduct Fair Hearing);

(2)  Irrationality (Wednesbury Unreasonableness);

(3)  Illegality (Failing to take into consideration relevant factors); and

(4)  Illegality (Mistake of Fact).

12.Regarding the Applicant’s first ground of review, the Applicant complained that, firstly, the Adjudicator has asked the Applicant questions at the hearing that required speculative answers; and secondly, the Adjudicator has placed too much emphasis on the failure of the Applicant to adduce corroborative evidence in respect of his claim.  The Applicant said that the Adjudicator in so doing has failed to conduct a fair hearing for the Applicant.

13.The Applicant’s second ground of review relates to the Adjudicator’s finding that the “police would not be reasonably expected to take any meaningful action” on the basis that the Applicant has not “given the police any names, addresses or other details to enable them to launch an investigation”.  The Applicant said that this is unreasonable in public law sense in that regardless of whether or not there was any evidence or proof submitted by the Applicant, the police should still have registered the complaint and undertaken their own investigation.

14.The Applicant’s complaint in respect of his third ground of review is that the Adjudicator has given no thought as to whether or not by failing to act the State was liable. The Applicant said that he had mentioned that the police would not help him due to the strong influence INC has over the police authorities and as such the Adjudicator should have considered whether or not the State was liable for what it should have done but failed to do in respect of the violence instigated by the non-state actors.

15.As for the Applicant’s fourth ground of review, it is the Applicant’s complaint that the Adjudicator has incorrectly treated the Applicant as a mere pamphlet distributor and concluded that “it is against common sense to target a distributor of pamphlets and there was no good reason for the INC supporters to chase him around India”, whereas the Applicant has in his evidence stated that he also performed other roles such as helping at rallies, attending marches and canvassing votes.

Discussion

16.In AM v Director of Immigration[5], McWalter J (as he then was) had this to say[6]:

“irrespective of how poor a country’s security position may be and irrespective of the extent to which the State, by its attitude and inaction, may have contributed to this situation, the question always returns to the position of the claimant himself and whether it has been established that ‘there are substantial grounds for believing that he would be subjected to torture’ should he be returned to his country of origin.”

17.The burden of proving that there are substantial grounds for believing that the Applicant would be subjected to torture lies on the Applicant.  The Applicant must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity”; and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment[7].

18.The standard of proof is a degree of likelihood or a “real chance[8]” of harm if refouled. While the difficulties of proof faced by persons fleeing their countries should be recognised[9].

19.The main reason for the Adjudicator to reject the Applicant’s claim is that the Adjudicator was not satisfied that the Applicant has discharged his burden to prove that he would be persecuted by the INC if refouled.  The Adjudicator has in her Decision set out the relevant legal principles regarding the burden and standard of proof and I do not see her committing any error on this.

20.Regarding the Applicant’s first ground of review, the relevant questions asked by the Adjudicator were (i) why the supporters of the INC only started to recruit him after the General (Lok Sabha) Elections in 2014, not before the elections; (ii) why the supporters of INC wanted to take revenge on him; and (iii) why the man whom he helped to become an elected Member of Parliament in 2014 would not remember him. 

21.Ms Herbert, counsel for the Applicant, submitted that these questions should not be allowed in questioning a witness in that it requires the witness to read into the others’ mind in order to answer these questions.  With respect, in my view, in would only be fair for the Adjudicator to pose these questions to the Applicant to afford him an opportunity to explain the queries in the Adjudicator’s mind concerning these areas.  On the contrary, it would not be fair to the Applicant if the Adjudicator did not give the Applicant an opportunity to explain but at the same time reject the Applicant’s claim right away because of such queries.

22.To suggest that the Adjudicator has failed to conduct a fair hearing by asking the Applicant these questions is clearly misconceived.     

23.Although the Adjudicator has made comments on the Applicant’s failure to adduce corroborative evidence in respect of certain issues, the main reason for the Adjudicator rejecting the Applicant’s claim was that the Applicant’s case was inherently improbable.  As referred to above, it was the Adjudicator’s view that with the insignificant role of the Applicant in the BJP, there was simply no reason for the INC people to target him for ill-treatment and chase after him all over India.  Moreover, it defies common sense that a supporter of a party who won the election would be oppressed by people from the losing party and could not seek help from his party.   

24.I do not accept that the Adjudicator has placed too much emphasis on the failure of the Applicant to adduce corroborative evidence.

25.In my view, the first ground of review of the Applicant is not reasonably arguable and have no realistic prospect of success.

26.The second ground of review is a very narrow point and can be of little force.  The Adjudicator’s comment that “[i]n any event, from the information that the [Applicant] provided, the police would not be reasonably expected to take any meaningful action.  The [Applicant] had not given the police any names, addresses or other details to enable them to launch an investigation” was not the main reason for the Adjudicator not to accept the Applicant’s allegation against the police.  The main reason given by the Adjudicator was that “[the Applicant’s] allegations against the police in Haripur Police Station were extremely general and lacking in detail.  I found the allegations to be simplistic and unpersuasive”.  That was a view held by the Adjudicator having regard to all the evidence of the Applicant.

27.In any event, I do not agree that it was unreasonable to conclude that because the Applicant did not give sufficient particulars to the police the police would not be reasonably expected to take any meaningful action.  I find this more accord with common sense.

28.The third ground is basically an extension of the second ground.  As I do not find the conclusion reached by the Adjudicator in respect of the alleged police inaction unreasonable, the third ground is equally without force.  Furthermore, as it was the Adjudicator’s view that the Applicant could not make out his claim in relation to the persecution by INC and the police’s inaction, State inaction or acquiesce cannot come into play.

29.Equally, the second and third grounds of review have no realistic prospect of success.

30.Regarding the fourth ground, we should look at the Adjudicator’s reasoning more carefully. 

31.In paragraph 17 of the Adjudicator’s Decision, the Adjudicator identified a list of unsatisfactory answers given by the Applicant to questions put to him on the material facts of the Applicant’s case, including, inter alia, the followings:

“(k)  The Appellant was asked whether the senior members/officials of the BJP would remember him if he had sought their help. He said that the senior members would not, but could not explain why. The Appellant had successfully persuaded many villagers to vote for the BJP, therefore the senior members/officials ought to remember such a good recruitment worker. The Appellant then said that he was only a ‘small supporter’, whose work was limited to distributing pamphlets.”

32.From the above answer of the Applicant, it was the Applicant’s own admission that he was merely a “small supporter”, so much so that the senior members/officials would not remember him.  However, on the other hand, it was the Applicant’s case that the INC has been pursuing after him due to his contributions to the BJP for revenge and in the meantime wanted to recruit him to support the INC.  The Adjudicator found this proposition incredible.

33.Although the Adjudicator mentioned several times that the Applicant was a pamphlet distributor, what the Adjudicator wanted to express was actually that the Applicant only assumed a very minor role in BJP and this rendered it extremely unlikely that INC would pursue against him.  The fact that the Applicant assumed only a minor role has been admitted by the Applicant.

34.Therefore, even if the Applicant had also “helped at rallies, attended marches and canvassed for votes”, it is neither here nor there.  The Applicant’s role being very minor is still undisputable and the Adjudicator’s point remains valid. 

35.The fourth ground of review has no prospect of success.

Delay

36.In the light of my above findings, the Applicant’s application for extension of time to apply for judicial review shall be refused for devoid of merits.

37.The Applicant’s application for leave is dismissed on the merits and also for the reason of delay.

Miss Elizabeth Herbert, instructed by Messrs M.C.A. Lai & Co, for the Applicant