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

HCAL504/2017

[2018] HKCFI 1162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 504 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 on 4 April 2012 but overstayed from 26 April 2012.  He was arrested on 30 May 2013 for overstaying and possession of an identity card relating to another person.  He was sentenced to 16 months’ imprisonment and whilst serving this sentence, the applicant lodged a non-refoulement protection claim.  The Director of Immigration (“the Director”) rejected his claim on 17 June 2016 and 2 March 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 24 April 2017.  The applicant filed a notice of application for leave to apply for judicial review on 9 August 2017.

Extension of time refused

2.The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision (order 53 rule 4).  He is in fact just over two weeks late.  His notice of application does not acknowledge the delay nor does it set out the full reasons for the delay as it should.  There is no application for an extension of time to file his application in light of the delay.  In the applicant’s supporting affirmation there is a reason for the delay.

3.The applicant said he did not receive any decision from the TCAB dated 13 February however, I note the decision was dated 24 April 2017.  He was informed by an Immigration officer that the TCAB decision had been made.  The applicant went personally to the TCAB office and requested a copy of the decision.  He gives no further details or particulars such as on what date he was informed and on what date did he receive a copy of the decision.  He simply says this is the reason for the delay in making this application.

4.During the oral hearing, the applicant gave a different explanation for the delay.  He said it was a late application because if he had known about the process of applying for judicial review of the decision then he would have made the application earlier.  He said that his friend told him that these applications can be a little late.  The applicant blamed his lack of education on his failure to submit the application on time.  The same friend drafted his affirmation on his behalf.  He could not recall what reasons his friend had given in his affirmation for the delay in this application.

5.The delay in filing this application is not insignificant, there was no proper explanation for the delay and the brief reason given is not a good reason for extending time.  This is also because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general importance.  Extension of time sought should be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.The basis of the applicant’s claim is that he would be harmed or even killed if he returned home to India because of a family dispute over land and a love affair.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it.

7.The applicant’s father owned land together with four of the applicant’s cousins; his father owned one quarter of the land.  The father also inherited the ancestral home.  The cousins were jealous and wanted the applicant’s father to sell them his share of the land but he refused.  In 1994 the cousins beat the father and threatened to kill him and his family so out of fear, they moved to a rented house about 100 km away.  Five years later, the applicant’s father found out that his cousins had built a factory on the land but eventually the police ordered them to dismantle the factory.  The land lay fallow for about three years and the cousins tried on many occasions to force the applicant’s father to sell.

8.The applicant’s father did try to sell the land in 2002 for its market value but the cousins tried to coerce him to sell to them for much less.  They threatened to kill him and his whole family if he refused.  The police were involved but did not help the applicant and his family.

9.In 2006 the applicant fell in love with a girl called Renu but their affair was discovered by her brother who beat him and broke his finger.  The applicant promised to stay away from Renu but broke his promise when she threatened to kill herself if he did not see her again.  In 2007 her brother found out they had seen each other and went to find the applicant armed with a pistol.  He was not home but his parents were told that he would kill the applicant.  His parents told the applicant and he immediately took a two-day bus journey to hide at a friend’s home in Hyderabad.

10.In July 2008 he returned home in the hope that matters had calmed down and he could apologise to her family for breaking his promise.  However, they were still intent on killing him and the village council could not help him so the applicant’s parents advised him to leave India.  He went to work in Iraqi as a computer technician in October 2008 and returned to India in December 2011 but lived with a relative about 100 km away from home.  In March 2012 Renu’s brother called him and told him that he would kill him if he did not leave India because his sister refused to marry anyone.  The applicant was frightened and decided to leave for Hong Kong because her family was rich and influential as well as connected to the Indian National Congress Party.

11.The Director and the adjudicator of the TCAB 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”).

12.The adjudicator of the TCAB conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles for the four applicable grounds.  He set out the applicant’s claim and assessed his evidence.  The applicant had elected to give evidence and answer questions.  The adjudicator accepted that there was a land dispute between family members and accepted that there were death threats but they were empty threats bearing in mind the length of time this dispute has been going on.  He also did not doubt that the claimant fell in love with a woman called Renu but did not find there to be sufficient evidence that showed he faced a real risk of serious bodily harm or death from her family members.

13.The adjudicator found that when he applied the applicant’s evidence to all four grounds, the applicant had not made out a case for non-refoulement protection.  The adjudicator did not accept that the applicant would face any real risk of persecution, torture, CIDTP or death if refouled.

14.On what he accepted was likely to be the applicant’s case, he found the applicant was unable to establish within the definition of torture under section 37U(1) of the Immigration Ordinance any real risk he would face torture if refouled; torture as defined and for those reasons set out in that section.  His torture risk claim failed.  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; his BOR 2 and BOR 3 risk claim failed.  Lastly he could not establish he had a well-founded fear of being persecuted for reasons set out in the refugee convention if he was refouled to India; his persecution risk claim failed.  The adjudicator confirmed the decisions of the Director.

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 no fault with the adjudicator’s decision.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

16.The grounds in the applicant supporting affirmation are not so clear or coherent but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with Country of Origin (“COI”) information.  He cherry picked information that resulted in an unreasonable finding.  There are no particulars provided by the applicant.  He submits the adjudicator failed to consider whether there is a consistent pattern of human rights abuses in India and whether there was State protection for the applicant.

17.The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the evidence that he believed to be true.  He set out in his decision his findings and reasons for his findings.  There is no need therefore, to go into detail where COI is concerned.  The applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it.  For the same reason, it was not necessary to assess State acquiescence.  There are no merits in the grounds highlighted above.

18.The applicant makes a complaint against the interpreter misinterpreting what was said in relation to the applicant’s BOR 2 claim that had already been refused.  He gives no details or particulars of what mistakes the interpreter made.  He said that if he had received the Director’s letter inviting him to submit additional facts to support a BOR 2 claim then he would have done so.  He claims that he did not receive such a letter.  During the oral hearing the applicant said he could not be sure what letters he has received; his memory fails him.  I find no mention in the decision of a complaint from the applicant that he did not receive such a letter.  I find no merit in this convoluted ground.

19.There are criticisms of the adjudicator’s findings which I will not disturb.  He evaluated the evidence and gave reasons for his findings.  The applicant attempts to introduce new evidence in his affirmation; he says he is now dragged into some false cases by his opponents.  This was not part of his case before the Director or the adjudicator of the TCAB.  I would not consider it, even if there were particulars, in an application of this nature.

20.I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made 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.

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