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

HCAL364/2017

[2018] HKCFI 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 364 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who entered Hong Kong as a visitor on 29 June 2006 and overstayed here from 14 July 2006.  He was arrested on 29 January 2007 for overstaying and then lodged a torture claim before being released on recognizance.  In March 2013 the Director of Immigration (“the Director”) rejected his torture claim and the Torture Claims Appeal Board (“TCAB”) rejected his appeal on 8 May 2013.  The applicant made a claim for non-refoulement protection on the grounds of CIDTP on 28 May 2013.

2.On 29 November 2016, the Director rejected the claim made on 28 May 2013; rejected his BOR 3, BOR 2 and persecution risk claims.  The applicant lodged an appeal/petition to the TCAB which rejected it on 19 May 2017 after an oral hearing.  The applicant filed a notice of application for leave to apply for judicial review on 6 July 2017 and requested an oral hearing which was set down for 24 November 2017.

3.A notice of hearing dated 14 September 2017 was sent by post to the applicant’s address supplied by him in his application. The applicant was absent on the hearing date.  I proceeded to consider his application on the papers.

4.The basis of the applicant’s claim was that if he were to return to India he would be harmed or killed by the family of his previous girlfriend because they disapproved of his relationship with her and they blamed him for her disappearance.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only intend summarise it here.

5.The applicant received about 11 years of education and has been unemployed since he left school.  He met a woman called Kaur who was a kindergarten teacher where his nephew was studying.  They met a few times from October 2005 and then had sexual intercourse several times after the third or fourth meeting.  Neither his nor her family knew they were dating. Suddenly in March 2006, Kaur asked the applicant to return all the photographs and letters she had given him for no reason.  The applicant only gave her photocopies of the photographs and letters and kept all the originals in case she accused him of having sex with her against her will.

6.She was angry that he would not return the originals and they had a heated argument.  Eventually the applicant returned half of the original letters and all of the original photos except for one.  She was not placated and he has not seen her since 13 March 2006.  She was then hit by minibus by accident two weeks later and her family found out from the doctor when she was hospitalised that she was pregnant.  Her family found photographs and letters from and of the applicant.  Her brothers, her father and other men went to the applicant’s house that same day looking for him but he was working on the farm.  His sister went to the farm and told the applicant those men looked angry and behaved very strangely but left no message.  His mother told the applicant to leave Punjab immediately.

7.The applicant took the train to another town to live with his brother.  They both lived in his truck travelling around India for several months.  He found out later that her family had returned several times between April and June 2006.  They said that Kaur had disappeared and the applicant must be hiding her.  They demanded that he return her or else they would chop off his hands or kill him.  Her family was rich and politically influential; they operated a transport business all over India.  They have the ability to locate the applicant all over India.  A friend advised the applicant to leave India for his own safety, so he entered Hong Kong on 29 June 2006.

8.In 2014, the applicant’s other brother was targeted by her family because they still wanted revenge and could not find the applicant.  In 2013 he was beaten up by her brothers and hospitalised for one to two months.  A few months later, he was riding his motorcycle when a car driven by friends of Kaur’s brothers deliberately hit him.  He recognised them as they hit him.   He was hospitalised for several days. The applicant’s brother did report the assaults to the police but he was ignored when he mentioned Kaur’s fathers name.  As his brothers were afraid the family wanted revenge, two brothers of the applicant left India in April 2014.  The applicant’s mother said that even in late 2015 Kaur’s father was still coming to the house looking for the applicant.  That is why the applicant says it is still unsafe for him to return home.

9.The adjudicator analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   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 ICCPR (“BOR 2 risk”).

10.The adjudicator treated the appeal as a rehearing.  She conducted an oral hearing.  She set out the applicant’s complicated asylum history in detail in her decision.  She correctly set out the law and key legal principles for the four applicable grounds.  She considered the torture claim even though it had been previously considered and gave her reasons why in her decision.  She set out the claimant’s case and evidence and the matters she considered material.

11.The adjudicator rejected the applicant’s evidence and gave full reasons why.  There were inconsistencies that troubled the adjudicator.  The ambivalence of the applicant caused her concern.  How he found out his girlfriend was pregnant caused her concern.  Even whether there was any threat of harm to him by her family was not straightforward in his evidence.  The adjudicator set out the examples of where his evidence was ambiguous if not contradictory.  He gave the applicant an opportunity to explain but ultimately, she did not believe him.

12.Despite her finding the applicant was not a genuine claimant, she nonetheless dealt with the issues of reasonable State protection in India and the availability of internal relocation.  She found the availability of both vitiates the claim for non-refoulement.  She gave her reasons why she came to that conclusion.

13.The adjudicator found the applicant did not face any risk of persecution, or was at risk of any cruel, inhuman, or degrading treatment or punishment or was at risk of death.  She also did not find there to be any risk of torture.  In any event, there would have been no hardship if he had to relocate to any other part of India other than his home district.  She found that the Indian authorities and police could offer reasonable protection to him if needs be.  She confirmed the decision of the Director.

Leave to apply for judicial review

14.The applicant has sought to judicial review the Director as well as the adjudicator of the TCAB.  In my view, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  In this case, the adjudicator did not need to but did consider the torture risk claim again despite it having already been dealt with in 2013.  There is no room for a judicial review of the Director’s decision here, there were no exceptional or obvious reasons.  I have considered the grounds of the applicant’s application against the decision of the TCAB only.

15.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed the material, claims and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

16.The applicant submits the adjudicator failed to carry out sufficient research and enquiry into the country of origin conditions.  Having found the applicant was not a genuine and credible claimant, there was no need for the adjudicator to consider such information in depth.  The same reason applies for why the adjudicator did not consider human rights violations and State protection in Bangladesh in any great detail.

17.The applicant accuses the adjudicator of making errors in law but I find no merit in those grounds.  The applicant refers to never receiving a letter from the Immigration Department inviting him to submit additional information about a BOR 2 risk.  The applicant’s BOR 2 risk was not dealt with separately (see the Director’s decision dated 29 November 2016) from the other grounds, he would not have received such a letter.

18.The applicant accuses the adjudicator of selecting bias Country of Origin information. The adjudicator did not refer to specific information or rely on such information in dismissing the applicant’s credibility.  There is no merit in this complaint.

19.There is a request for more time to provide evidence that the applicant’s enemies have tortured his family and to provide a lot of additional information regarding his claim that circumstances have changed.  There is a claim that his brother-in-law has been shot by his enemies and the police refused to investigate them.  Apparently his enemies have falsely alleged he has committed a crime and the police are now looking for him.  These are new facts that were not before the TCAB.  These are not matters relevant to a judicial review that I should take into account.

20.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness, in fact the adjudicator adhered to a very high standard of fairness in assessing the applicants claim and treating the hearing as a de novo hearing.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 9^th 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