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

HCAL390/2017

[2018] HKCFI 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 390 of 2017

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 arrived in Hong Kong on 2 April 2011 but overstayed illegally. The applicant was arrested over one year later on 22 July 2012 for overstaying and only then did he raise a torture claim which then became a non-refoulement protection claim in 2014.  It was rejected by the Director of Immigration (“the Director”) on 13 January 2016 and 13 February 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 15 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017 and requested an oral hearing which was set down on 29 November 2017.  The applicant appeared in person having had his application for legal aid refused.

2.The basis of his claim was if he were refouled to India he would be harmed by his friend Jinder’s family and the police because his family had reported the applicant to the police for conspiring to murder Jinder’s brother, Minda.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

3.The applicant was born in 1984 in Punjab, India, completed 12 years of schooling, worked as a supervisor in the Coca-Cola company and is single.  Jinder is a childhood friend and a drug addict with an elder brother called Minda.  His family are farmers but rich and influential with a good connection to the Akali Dal (“SAD”) political party and therefore well-connected to the police.

4.In October 2010 Jinder invited the applicant to a wedding of his neighbour.  At the wedding Minda caught his younger brother taking drugs and later blamed the applicant in front of his whole family for getting him involved in drugs which was not true.  The applicant’s friends backed him up.  Minda had assaulted Jinder at the wedding for taking drugs and he had gone to hospital for treatment.  Later that night, after Jinder was released from hospital and went home, he argued with Minda and damaged his car.  This led to a physical fight and he stabbed Minda.  Their parents witnessed this and sent Minda to hospital but he was already dead.  His parents told the police that the applicant was to blame because he introduced Jinder to drugs and made him a drug addict.  The police were looking for the applicant to arrest him.  The applicant was told all of this by a third-party. A neighbour told him it would be best if he left.

5.The applicant said when the police intended to arrest him he went to his aunts in Amritsar for a few days and his parents told him to go further so he then went to Jaipur in Rajasthan until January 2011.  His parents told him that the police were looking for him at relatives’ homes and advised him to leave the country before they got to Jaipur.  The applicant left India for Thailand on 3 February 2011 and travelled to different countries including Malaysia and Cambodia before arriving in Hong Kong 2 April 2011 on the advice of a man he had met in Thailand.  He did not seek protection in the other countries because he was not aware that he could. He did not know how to apply for protection in Hong Kong until after he was arrested.  He heard that Jinder had also been arrested, charged and even sentenced for the murder of his brother but had been released because his family had bribed the police.

6.The adjudicator, as did the Director, 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 the 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”).

7.The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles in assessing the four applicable grounds.  He set out the applicant’s evidence and claim. The applicant elected not to give evidence or answer any questions during the oral appeal hearing.

8.As far as the torture risk was concerned, the adjudicator considered the definition of torture as set out in section 37U(1) of the Immigration Ordinance. According to the applicant’s own evidence he had not suffered any severe pain and physical or mental suffering; in other words, torture.  He had certainly not been harmed or threatened by anyone in authority or acting in authority; he was not a target of the State.  He was certainly not targeted for such purposes as set out in section 37U.  The adjudicator found on his own facts, the applicant could not establish a torture risk claim.  Moreover, the adjudicator found even if there was a risk if refouled there was state protection available and internal relocation was a viable option if there was a risk in his home village and he was not a fugitive from the police.

9.With regard to a BOR 3 risk, there is no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  The adjudicator found the applicant is not at risk of being subject to torture or CIDTP if he returned to India; his BOR 3 risk claim failed.

10.In light of the adjudicator’s finding, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his right under BOR 2; his BOR 2 risk claim failed.

11.Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did he have a well-founded fear of being persecuted for any of the Refugee Convention grounds; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.The applicant has set out three grounds in his affirmation.  His first ground is that he had insufficient time to prepare for the appeal hearing because the appeal bundle was only served on him six days before the hearing and the documents were in English.  He could not pay for an interpreter therefore he was not properly prepared.

13.However, the documents in the bundle consisted of his own claim and his interviews; basically his own evidence as well as Country of Origin information referred to by the Director.  Nothing in the bundle was new to him.  If he required any assistance he could have asked for help at the beginning of the appeal hearing from the interpreter provided, for example, he could have asked the adjudicator for some time to have a particular document read to him.  There is no record of a complaint from the applicant to the adjudicator that he was confused or required help before the appeal hearing began.  There is no merit in this ground.

14.The second ground submits the applicant answered all the adjudicator’s questions honestly in the appeal hearing and he is aggravated that his credibility was found questionable.  This ground is misleading and the applicant confirmed in the application hearing that he did not answer any questions in the appeal hearing because he had elected not to give evidence.  There is no merit in this ground.

15.The last ground is a complaint that the TCAB relied on Country of Origin information that is hearsay, out of date, not credible and not officially recognised.  There are no particulars to this ground.  The adjudicator lists the information he referred to, cites and considered relevant.  There is no merit in this ground.

16.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.  I find no substance in the grounds of this application.

17.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18.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 23^rd 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