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

HCAL446/2017

[2018] HKCFI 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 446 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 arrived in Hong Kong on 16 April 2015 but overstayed and surrendered to the Immigration Department on 4 May 2015.  He then lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 11 August 2016 and 1 June 2017.  He then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 14 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 25 July 2017 and requested an oral hearing.  The applicant appeared in person at the hearing having had his application for legal aid refused.

2.The basis of his claim was that if he were to return to India he would be harmed or even killed by his uncle because he had a personal land dispute with him.  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.  The applicant was born in 1961, had 10 years of education, was married with two children.

3.In 1994 the applicant’s father and his brother bought a piece of land together but the applicant actually paid for his father’s share with the money he earned working in the UAE.  His father died in 2009 and his share of the land was transferred to the applicant; he and his uncle became co-owners and both farmed the land.  In March 2014 the land had increased almost tenfold in value so the applicant approached his uncle to discuss selling it.  His uncle however disputed which parts of the land belonged to whom which led to a conflict because the front part was more valuable than the back part.  It should have been shared equally.  The applicant sought help from the village head of the village council.

4.When the applicant went to his uncle’s house to ask him to attend the village heads office, his uncle and cousin beat him with wooden sticks and he was hospitalised for two days as a result.  He tried to report this assault to the police but the police said it was a personal matter but in reality his uncle was closely associated with the local political party vice president who was also a retired senior police officer so no police action was taken.  In April 2014, the applicant instructed a lawyer to file a court case against his uncle and cousin instead.

5.In June 2014, after court summons were issued to them, the uncle and cousin went to the applicant’s house with other men armed with weapons and threatened to kill the applicant if he did not give up the land.  He was then beaten unconscious.  He found out later his neighbours had come to his rescue and stopped the beating.  He was again hospitalised for a few days.  He did not report this beating to the police because he felt it would be futile.  After this he hid in his father-in-law’s home about 30 minutes away for about three months until his uncle threatened his father-in-law.  After that the applicant went to hide in another relative’s home.

6.In April 2015 the applicant had to attend a court hearing where he then met his uncle and cousin.  They threatened to kill him when they left the court.  He had to hide in his lawyer’s office overnight. He then hid in his in-laws’ home for a few days before arranging to leave India via Delhi on 15 April 2015 to escape to Hong Kong.  Even though he is now in Hong Kong, his uncle and cousin continued to threaten him through his family members.  His life is still in danger whilst the court case is ongoing which may take four to five years to complete.

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 applicant has proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86.  The grounds in his affirmation appear directed at the adjudicator only except for one ground against the Director which was that it was unfair his BOR 2 risk claim was determined without an interview or hearing.  Other than that ground, I therefore propose to consider this application against the decision of the TCAB only.  In any event, 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.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB.  Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing.

9.The adjudicator conducted an oral appeal hearing. He correctly set out the applicable law and key legal principles for the four grounds.  He set out and analysed the applicant’s evidence and applied the law as if he believed the applicant’s evidence.  He found that he failed to establish a case of non-refoulement under any risk claim be it a risk of torture, BOR 2, BOR 3 or persecution.  The adjudicator confirmed the decision of the Director.

10.The adjudicator did go on to consider the applicant’s credibility and found there to be inconsistencies that were serious and inconsistencies that undermined his credibility, for example the fact he did not raise a torture claim as soon as he arrived in Hong Kong.  However, the adjudicator made it clear that independent of his finding on credibility, the applicant failed in his application.  What he meant was that even if he believed the applicant’s claim entirely, he failed to establish a case for non-refoulement.

Leave to apply for judicial review

11.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 has analysed the material, claims and evidence carefully.  The same applies to the Director.  The applicant’s complaints against him and the procedure undertaken are not made out.

12.The applicant states in his affirmation that he seeks to mainly challenge the decision of the TCAB.  His grounds are not set out clearly or cogently but he submits the adjudicator failed to properly consider and deal with Country of Origin (“COI”) information.  He failed to consider human rights abuses in India and whether State protection was available.

13.The adjudicator did consider COI information and found State protection did exist and is available.  He set out his findings and references in his decision.  The applicant did not claim there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it.  There are no merits in these grounds.

14.He also complains that he did receive an invitation by letter after the first dismissal by the Director from the Immigration Department and did submit additional information for a BOR 2 claim but was not interviewed which is unfair and unjust.

15.The Director said he had fully analysed the applicant’s supplemental evidence in light of the assessment on the risk of his feared treatment as set out in his decision of 11 August 2016.  He did this considering the provisions of BOR 2.  In his Notice of Further Decision, the Director gave full reasons for his decision with reference to his previous decision.  There was no need for a further interview, there was no prejudice.  There is no merit in this ground.

16.Contrary to what he told the adjudicator during the appeal hearing, he claims in the affirmation that his family home has been attacked, family members have been tortured, a younger sibling has been killed and his farmland burnt.  His son has fled the country after being tortured.  His enemies have framed the applicant and reported him to the police for false crimes and he is now a wanted man.  It does not appear that all of this evidence was before the adjudicator.  If it was new evidence, then it is not appropriate for me to consider and take it into account in an application of this nature.

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.  This applies also to the Director’s decision.

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

Dated 23^rd day of April 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