Tarjinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL640/2017
[2018] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 640 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong on 29 April 2012 on a Visitor visa which allowed him to remain until 13 May 2012.  Thereafter, he overstayed but lodged a refugee application to the UNHCR in May 2012.  That application was rejected in December 2012.  On 26 September 2012, he was arrested and charged with possession of an identity card relating to another person (his brother) and breach of condition of stay.  On 7 December 2012 he was sentenced to four months’ imprisonment.  On 7 February 2013 the Applicant was transferred to Castle Peak Bay Immigration Centre.  On 27 March 2013 a deportation order was issued against him.

2.The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 January, 9 April and 15 April 2013.  He was released on recognisance on 10 June 2013.  His NRF claim form was submitted on 29 July 2015.  The Applicant attended a screening interview on 28 October 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 January 2016 and by Notice of Further Decision (re BOR 2) on 3 February 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 19 January 2016. He appeared before the Adjudicator of the TCAB, P.K.M. Longley.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 26 July 2017.

3.The Applicant filed a notice of application on Form 86, seeking leave to apply for judicial review on 19 September 2017 and did not request an oral hearing.  The leave application was considered on the papers.

Summary of personal background and claim

4.The Applicant is an Indian citizen but was born on 16 January 1983 in Hong Kong and has an unconditional right to remain but not permanent residency status.  He is 35 years of age and single.  At the time of his birth, the Applicant’s father worked in Hong Kong for the military.  He spent a period of four years in India between the age of three and seven, before starting school at which point he returned to Hong Kong.  His father died in 1993 and so he was taken back to India by his mother at the age of 11 in 1994.  His mother and elder sister live in India.  His two elder brothers live in Hong Kong.

5.The Applicant submits that his family own land in Varpal, Amritsar, India over which there was a dispute with a neighbour, “Kuldeep”.  That dispute dates back to 1988 but was resolved in court in 1997/8 when his family succeeded but as a result, Kuldeep bore a grudge and threatened revenge.  The land was thereafter rented out to two people in half shares including someone called “Sukhdev”.  In 2011, the Applicant wished to take back that land to farm for himself but Sukhdev threatened him and as a result he did not proceed.  He says his house was vandalised and he was attacked.  He believed that this was done by Sukhdev but he had no evidence to corroborate this and he did not report the incidents to the police.  Sukhdev had connections with others who were involved with the Akali Dal Party and therefore the Applicant believed that Sukhdev had the ability to arrange for his killing.  At some stage the Applicant says that he had witnessed Sukhdev chopping off someone’s arm without any action being taken by the police.  At about the same time, the Applicant and his mother took out a loan with another man, “Jaspal”, which was secured against part of the land which was then rented to him.  The Applicant also said there was an incident in February 2012 when he was arrested and spent some time in police custody.  He believed this was because he had been falsely accused of trafficking in dangerous drugs and murder by Sukhdev.  His mother paid 15,000 rupees to have him released.  He then fled to Amritsar and later left India on 29 April 2012.  The land is now rented to relatives but Sukhdev has threatened that he will re-take the land when the Applicant’s mother dies and will kill the Applicant or ensure he goes to prison.

6.The Applicant has made several attempts to return to Hong Kong lawfully in October 2000, July 2005, and September 2010, which were unsuccessful.

The non-refoulement claim

7.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii.   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);

iii.   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”); and

iv.   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).

Decision and further decision of the Director

8.The Applicant was seen on 28 October 2015.  The Director analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles.  He found that there was no present threat arising from the original land dispute which the Applicant’s family had won against Kuldeep.  Nor was there any present threat from Sukhdev as the land was now rented to members of his family.  The Director considered the risk of threat to be low given the passage of time and his behaviour towards the alleged protagonists in continuing to lease land to them.  He further found that this was clearly a personal dispute.  The Applicant’s family has no political affiliation and no evidence of any religious conflict.  There was no evidence to support any connection between Sukhdev and the attacks and no evidence of any connection between him and the police to support an allegation of improper behaviour by any state agency.  It was not accepted that the state was indifferent or would have failed to provide the Applicant with proper protection if he had needed it or asked for it.  Indeed, the judicial process found in his favour in respect of the original land dispute.

9.Even if there had been a well-founded fear of harm, the Director found that as a 32‑year‑man (as he then was), it would not be unduly harsh to relocate to another area such as Amritsar which was the city he had previously gone to and in which he suffered no harm.  His chances of employment there would be as good as, if not better than in his home village.

Decision of the adjudicator

10.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles and referred to all relevant available COI materials.

11.Having heard the Applicant, the Adjudicator did not find his claim credible in respect of the original dispute given that some 18-19 years had passed and he had not heard from Kuldeep since the land had been rented out in 2000.  The Applicant attempted to fill this gap by attributing the attempt to frame him as coming from Kuldeep and to suggest that he was also responsible for the attack on his home, both of which had previously been attributed to Sukhdev.  Even if this had been true, which the Adjudicator did not believe, the Applicant’s mother had remained in the village unharmed.  Nor had any other member of the family, who were co-owners of the land, been harmed in any way.  The Adjudicator also disbelieved the Applicant in respect of alleged fear that Sukhdev would use his influence with a person called Gulzar Singh to have him killed.  It soon became clear that the Applicant had no first-hand knowledge of the relationship between the two nor any factual basis to suggest that the latter would be in a position or willing to assist in having him killed.

12.The Applicant’s credibility was also brought into question in respect of the difference between his written submissions, evidence in interview and his Detainee Submission Sheet dated 15 April 2013 in which the Applicant put forward a completely different version of events in respect of his police detention in India, which attributed blame to Jaspal and not to Sukhdev.  In explanation, and for the first time before the Adjudicator, the Applicant submitted these were two entirely separate incidents. The Adjudicator found that if that were the case, then the incident with Jaspal, if true, would have been relayed previously to the Director.

13.Of particular significance to the finding of the Adjudicator was the fact that despite the allegations of the Applicant in respect of all three men, the land has subsequently been handed over to members of the Applicant’s family to farm without apparent incident.  On the basis of credibility alone the Adjudicator would have rejected the Applicant’s claim but he nevertheless went on to consider the claim on the basis that the Applicant was in some danger and had not been satisfied that he would not have obtained protection from the authorities.

14.Finally, the Applicant had failed to establish why he could not be the subject of relocation if what he said was true.  He is an educated man who speaks four languages.

Judicial review

15.The Applicant has submitted an application for leave to seek judicial review.  He has not sought an oral hearing.

Ground of review

16.It is not entirely clear whether his grounds of review are in respect of the Director or the Adjudicator or both and therefore I will proceed on the basis that it is against the Decisions of both.

17.In his affidavit in support of his application for leave, the Applicant submits:

(i)   There were no reasonable grounds for rejecting his claim.

(ii)   There was a failure to consider the extended form of state acquiescence.

(iii)   There was a failure to fully consider the COI reports in assessing risk to the Applicant.

(iv)   There was an irregularity in that the decision maker was not the person who interviewed the Applicant.

(v)   There was no proper basis for the consideration of internal relocation.

18.There were no supporting submissions in respect of these specific allegations.  The supporting information was a synopsis of current case law.  I therefore considered the grounds advanced as they stand.

19.In respect of (i) above, both the Director and the Adjudicator analysed the Applicant’s claim on all applicable grounds having heard the Applicant and provided him with an opportunity to state his case.  In coming to their determination, they took into account admissible documentary evidence, provided him with a degree of latitude in the submission of his own documents and gave him an opportunity to make representation and address their concerns.  There was nothing procedurally incorrect.  They explained in detail why they rejected his claim under each and every head.  There was nothing unreasonable in that explanation.

20.In respect of (ii) above, the Director and the Adjudicator considered the purported involvement of the state and its agents based upon the particular facts of this case which involved an allegation against the police and against a private individual said to be a Member of the Legislative Assembly.  They gave reasons for rejecting the Applicant’s claim on this basis and they properly referred to COI materials in respect of that determination giving credit where due to the criticism of the Applicant in respect of the trust reposed in local police forces but noting the improvements which have been and continue to be made in reducing police corruption.

21.In respect of (iii) above, there is no merit on this ground. Both the Director and the Adjudicator referred to appropriate up‑to‑date COI materials.

22.In respect of (iv) above, this is factually incorrect.  The Director properly delegates the task of assessing a claim but the person who carries out the interview and makes the determination to be relied upon is one and the same person on behalf of the Director.

23.In respect of (v) above, there was no evidence whatsoever that the Applicant would come to any harm elsewhere in India.  He is a capable and well‑educated man who should be able to find suitable employment wherever he chose to live.  He had previously lived elsewhere in India without incident.

Conclusion

24.I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The Director and the Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately and in depth.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

25.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 2^nd day of March 2018.

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