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

HCAL490/2017

[2018] HKCFI 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 490 of 2017

BETWEEN

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 in April 2008 and surrendered himself to the police in May 2008. He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 19 January 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected after an oral hearing on 28 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down for 11 January 2018.  The applicant 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 or even killed by a moneylender called Satnam because he had not repaid the loan outstanding to him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

3.The applicant borrowed money from the wealthy moneylender Satnam when he returned from working in Libya for three years.  He borrowed the money to open his own business in his home village. In fact, the applicant had borrowed money from him before he went to Libya but was sure that had been repaid in full.  Satnam disagreed and insisted the applicant pay 8% monthly interest and repay the principal within five years which he increased by 12.5%.  The applicant did initially pay as prescribed but his business deteriorated in 2006 at about the same time that his father was ill and his own son had had an accident.

4.In 2006 Satnam and four men vandalised the applicant’s shop with sticks and beat the applicant when they came asking for the monthly interest repayments.  They only stopped beating the applicant when neighbours intervened.  The applicant tried to lodge a complaint against him at the police station but the police refused to file his complaint.  The applicant assumed that it was because Satnam had bribed the police.  As a result of this beating the applicant was hospitalised for about 15 days; the doctors said he had sustained internal injuries.

5.The applicant worked two jobs to try and repay the loan but could not pay the monthly interest payments.  In 2007, his son was seriously injured when four men on to motorbikes rammed his bicycle from behind.  The applicant believed that they were men sent by Satnam.  The police were informed but nothing was done nor was anyone arrested.  His son was hospitalised for about two weeks and his father had a heart attack when he heard about the accident.

6.Satnam and his men would often come to the applicant’s shop threatening to kill him if he failed to repay his debts; these verbal threats were frequent and numerous.  In 2008, the principal loan became due so Satnam visited the applicant on a daily basis demanding repayment.  He told the applicant that he should now take his death threats very seriously so the applicant then closed his business in early 2008.  He went into hiding some four or five hours away by bus in his sister’s home.  His wife and children went to live with his parents-in-law.

7.After hiding for about three weeks and living in fear that Satnam would find him, the applicant arranged to leave India and come to Hong Kong by borrowing money from relatives.  The applicant is sure that Satnam is wealthy and well-connected throughout India therefore the option to relocate internally is not open to him.

8.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”).

9.The adjudicator conducted an oral appeal hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and claim as well as his analysis of it.  He found the evidence of the applicant had inconsistencies and doubted as to whether he could genuinely not recall details that were material.

10.The adjudicator gave the applicant the benefit of the doubt and accepted that he did borrow money from Satnam, fell into arrears for that loan and that he was then threatened and assaulted in an attempt to make him repay the loan.  The adjudicator accepted that the applicant left India in fear of harm of Satnam.  He believed the applicant’s evidence that after he left India, Satnam took his house and land.  After he left, no harm came to his family which would indicate that Satnam considered the house and land sufficient to satisfy the applicant’s debt to him.

11.The adjudicator did not believe that the value of his loan doubled between 2003 and 2008 as the applicant claimed.  He did not accept or believe that the applicant’s son was knocked off his bicycle by men sent by Satnam on purpose.  The adjudicator did not believe that Satnam had threatened his wife because the applicant himself said he had had no contact with his wife many years.

12.The adjudicator found on the facts that he accepted that the applicant had failed to make out a case for non-refoulement protection on any ground.  As far as the torture risk was concerned, on the credible evidence before the adjudicator he found that the applicant did not face a real risk of torture if he is refouled to India.  He had failed to establish that he had a well-founded fear of torture as defined in section 37U of the Immigration Ordinance.

13.As far as the persecution risk is concerned, the adjudicator specifically found that the applicant had failed to establish he has a well-founded fear of persecution and on that finding a loan, his persecution risk claim failed.

14.The adjudicator found that the applicant’s claim, on the facts that he found credible failed to invoke the protection of BOR 2 or BOR 3.  There was no evidence of any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP.  The adjudicator confirmed the decision of the Director.

Application for leave to apply for judicial review

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, he carefully analysed the material, claims and evidence of the applicant.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

16.The applicant relies on three grounds, the first was that he was not properly prepared for the appeal hearing because he only received the appeal bundle several days prior to the hearing and it was in English.  He did not know its contents and was confused on the day of the hearing.

17.He was asked during the oral hearing if he informed the adjudicator of the TCAB that he was confused and did not understand the bundle in proceedings because there was no mention of any complaint or request to adjourn in the adjudicator’s decision.  The applicant could not recall if he told the adjudicator he was confused.  There was an interpreter present to assist the applicant and I am sure if he was genuinely confused he would have asked for clarification and assistance.  Moreover, he made this application and affirmation in English so his confusion is in doubt. There is no merit in this ground.

18.The second ground submits that the applicant answered all questions honestly and is aggrieved that his credibility was doubted.  The adjudicator gave clear and ample reason for what he believed and what he did not find credible about the applicant’s evidence.  An application for leave to judicial review is not a review of credibility or the findings; I will certainly not be interfering with his findings.  There is no merit in this ground.

19.The last ground complains of the TCAB relying on country of origin information that is not officially recognised, hearsay and out of date.  There are no particulars provided by the applicant to support this ground.   In fact, the adjudicator did not refer to country of origin information. It was unnecessary for him to do so when he concluded that the applicant had failed to show he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk. There is no merit in this ground.

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 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.

21.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 7^th day of June 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