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

HCAL405/2017

[2018] HKCFI 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 405 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 24 March 2014 and was permitted to remain for 14 days but overstayed. He was arrested by the police on 27 April 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 4 September 2015 and 16 February 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 11 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 14 July 2017.  He applied for an oral hearing which was set down for 6 December 2017 and appeared in person having had his application for legal aid refused.

2.The basis of his claim was that if he returned to India he would be harmed by his business partner “LS” for disrespecting him and harmed or killed by “TS” for borrowing money from him and not repaying him. 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 need summarise it here.

3.The applicant started a real estate business with LS at the end of 2012 in Amritsar.  LS was a member of the Akali Dal Party (“ADP”).  He was the uncle of a friend.  Their business was successful and in June 2013 they bought a piece of farmland which cost 40 lakh rupees. They both paid 20 lakh rupees each. The applicant had to borrow 7 lakh rupees from TS to pay for his share.  The terms of the loan was to repay it with 10% interest by the end of 2013.

4.By the end of the year the value of the land had dropped and the applicant wanted to sell it and cut their losses but LS preferred to hold onto the land until the value went up again.  This meant the applicant was unable to repay TS as agreed.  One night he and LS’s nephew went to LS’s home to discuss the matter and hope LS would buy out his share but he refused.  He explained he had borrowed money to buy his share but LS was angry that he had come to his house to ask this favour.  LS pushed the applicant and his nephew out of the house and threatened him for humiliating him.

5.A few days later LS went to the applicant’s house with a few men and grabbed the applicant.  He was hit but his mother and neighbours stopped the assault.  He was told not ask LS for money.  By then, TS began to chase the applicant for the repayment of his loan as it was due.  The applicant could not borrow money from anyone else to repay the 7 lakh rupees.  TS went to the applicant’s home and told his mother he had to pay, he would not extend the repayment time and if he did not pay, he would be harmed.  The applicant was not at home at the time.  The applicant’s mother relayed this message to her son and told him he had to leave the country.

6.In January 2014 the applicant hid in his aunt’s home for two months whilst his family arranged his departure.  During that time, TS visited his home 7 or 8 times and threatened his mother.  On 6 March 2014 the applicant left India for Bangkok and then on 18 March he left Bangkok for Macau and arrived in Hong Kong on 23 March 2014.  After he arrived in Hong Kong, TS continued to harass his mother and threatened to kill the applicant when he returned to India.

7.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 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”).

8.The adjudicator treated the appeal as a rehearing.  He conducted an oral hearing session and the applicant elected not to answer any questions and he had nothing more to add.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicants claim and evidence before evaluating it.  He found the applicant’s case a purely personal dispute where he had borrowed money from TS and not repaid it.  TS had never used any physical force on or directly personally threatened the applicant.  LS had only personally pushed the applicant out of his house because he felt he had insulted him.  Neither men were held out to be government officials or political figures targeting the applicant.

9.The adjudicator considered Country of Origin (“COI”) information for India and found that there was corruption in India at all levels of government such as the police and quoted publications but he also found COI which showed that the government had put in place measures to improve these problems.  He also quoted publications to support that finding.  He found that if the applicant was at any risk, there was available State protection upon his return to India if required.

10.As far as the torture risk is concerned, he had considered and set out the definition of torture under section 37U(1) of the Immigration Ordinance.  He found even on the applicant’s own evidence he did not make out a claim for torture as defined under that section.  He was not a target of the State, he was not targeted for the purposes set out under that section and there was no evidence LS or TS were State officials or people acting in an official capacity.  There was no real risk of torture if refouled. His torture risk claim failed.

11.In light of his findings, the adjudicator found 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 rights under BOR 2 if refouled to India; his BOR 2 risk claim failed.

12.With regard to a BOR 3 risk, the adjudicator found he had not suffered any physical or mental ill-treatment from either TS or LS that reached a minimum level of severity to fall within the scope of BOR 3.  In addition, he did not accept that the applicant would face a genuine and real risk of being subjected to ill-treatment or CIDTP under BOR 3 if refouled to India; his BOR 3 risk claim failed.

13.Lastly, the adjudicator found that his fear of ill-treatment did not fall within the definition of persecution because his problem was a purely personal and private issue with TS and LS.  He did not have a fear of being persecuted on account of race, religion, nationality, membership of a particular social group or political opinion.  Therefore, his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.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.  He analysed material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

15.The applicant submits the adjudicator failed to carry out sufficient research and enquiry into COI conditions and was selective which upon a reading of the adjudicator’s decision is unsubstantiated.  The material he considers is objective, relevant and up-to-date.  He gives reasons for his finding that there is available State protection.  I find no evidence of cherry picking.  There is no merit in this ground.

16.The applicant submits that the adjudicator has failed to evaluate and make a finding of fact that there exists in India a consistent pattern of gross and flagrant abuses of human rights.  This is not part of the applicant’s case nor relevant to him.  He did not make any report to the police and there is no evidence that the police would not offer him protection or investigate any complaint from him.

17.The applicant complains that the adjudicator did not consider the fact that LS belongs to a political party and had political party connections.  The adjudicator did consider this and found there to be no evidence that LS’s membership to ADP meant any risk to the applicant.  There is no merit in this ground.

18.The adjudicator is accused of an error in law by failing to consider whether State protection existed.  There is a criticism that the applicant was unable to properly put forward a claim under BOR 2; he was unable to submit additional information in time because he did not receive the Immigration Department’s letter.  It appears he suggests that the interpreter misinterpreted what he had to say to the adjudicator in relation to his BOR 2 risk.  These details are without particulars and the complaint about correspondence was not raised with the adjudicator.  In open court, he submits he told the interpreter that he did not receive the letter but there is no record of this in the decision.  There is no reason for the interpreter not to interpret to the best of his ability and correctly.  There is no merit in these complaints.

19.There are further complaints about the interpretation by the interpreter.  This is followed by complaints the adjudicator failed to consider police corruption properly but the applicant made no police report and did not face a situation where he was refused help from the police.  He disagrees that he can relocate when his enemies belonged to a very strong political party that can find him anywhere in India.  He accuses the adjudicator of not checking the COI which will prove this fact.  He submits the adjudicator failed to consider his mental anguish which can equate to torture.  None of these complaints are substantiated nor are particulars given; none are reasonably arguable.

20.In this affirmation the applicant then adds new evidence that his sister has been shot by his enemy for refusing to disclose his whereabouts.  He then says his brother-in-law has made a police report but the police have not investigated this report honestly and no one has been arrested.  He adds new evidence that his enemies have reported him to the police for false charges, it would appear for murdering a politician and he is now a wanted man and could face the death penalty or life imprisonment.  This is evidence that was not before and considered by the TCAB therefore, will not be considered by this court.

21.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.  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