Manwinder Singh v. Torture Claims Appeal Board

HCAL 509/2017

[2018] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 509 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 (counsel for) the Applicant being absent / in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of India who last entered Hong Kong on 17 April 2006 with permission to remain as a visitor for 5 days, but thereafter he did not depart and instead overstayed until 15 June 2007 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged his torture claim on 15 August 2007 with the Department on the basis that if he returned to India he would be harmed or killed by someone with whom he had a money dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Thatha, Patti, Amritsar, Punjab, India where his parents and brother still live.  After leaving school he assisted his father to work in his farmland in their village.  One of the biggest customers who bought crops from his family was SD who came from a wealthy family with farming business in the area and was the Commission Agent of the Congress Party of India.

3.One day in August 2005 the applicant sold crops to SD for one million Indian Rupees but which SD found too expansive and refused to pay that price for the crops already delivered to him.  As the applicant’s brother was about to marry and needed money, his family therefore sold their next harvest of crops to someone else but when SD found out about it, he became angry and told the applicant’s family that he would not pay for the crops earlier sold to him.

4.A few days later when the applicant went to SD’s home asking him for payment for those crops, SD became angry and assaulted him with punches and threatened to kill him if he ever raised the issue again.  The applicant therefore made a complaint to the police but no action was taken by them and the applicant believes that the police were under the influence of SD.

5.One day in late 2005 the applicant was ambushed in the street by SD’s son and other men with guns and sticks for making the complaint against his father to the police, and was beaten by them causing bruises all over his body with a warning that he would be killed if he did that again before they all fled when the police arrived.

6.After receiving treatment at the hospital for his injuries, the applicant went to the police to complain against SD’s son for the assault, and again the police did not take any further action.  Afterwards SD’s son came to the applicant’s home with some policemen claiming to collect debts from him, and when they realized that he was not in the house, SD’s son then vandalized the house while the policemen did not do anything to stop him.

7.To avoid any further disturbances so caused to his family, the applicant therefore moved to stay in his friend’s place in Toot Bhangaalan in October 2005, but in early 2006 when he started to see some of SD’s men in the neighborhood asking about him, the applicant became very concerned and told his parents who then advised him to leave India for his own safety.  The applicant therefore left India on 25 March 2006 and eventually came to Hong Kong and lodged his non-refoulement protection for which he later completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 6 March 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.In his decision the Director found on the facts of the applicant’s own case the low intensity and frequency of ill-treatment from SD and his son in the past is indicative of the unlikelihood of future risk of harm upon his return to materialize after all these years as they only wanted to deter the applicant from asking them to pay for the crops, and as it was a personal and private matter in the absence of any evidence of any state or police involvement in their actions that state protection would be available to the applicant if resorted to, and that reliable Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with such a large population of 1.2 billion people spread over a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home district such as New Delhi where he can live and work free of any threats from SD.

10.By a Notice of Further decision dated 24 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 12 March 2015, but for which he failed to attend an oral hearing scheduled for 4 August 2016 before the Board without providing any explanation, and the Board decided to proceed to consider his appeal without scheduling another hearing.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

12.In its decision the Board accepted the applicant’s account of his dispute with SD and his son and the threats and assaults from them but found no evidence that they were acting in any official capacity of the state and hence state and police protection as well as reasonable internal relocation alternatives would be available to the applicant upon his return to India, and concluded that on the facts of his own case the applicant has failed to establish his claim under any of the applicable grounds.

13.On 11 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his affirmation of the same date did he set out any grounds for his intended challenge or even alleging that the Board had erred, and in his affirmation he merely exhibited a statement in which he just repeated his dispute with SD and the threats from him and his son, but he also added that as a result of their ill-treatments he has had hallucinations that he was still in India facing those threats and has therefore resorted to alcohol and required hospital treatments, for which he also exhibited two letters from the Castle Peak Hospital dated 5 and 7 April 2016 respectively showing that he had been admitted to the hospital from 5 March to 7 April 2016 for psychosis.

14.Furthermore, sometime in or about November 2017 or thereafter the applicant submitted a medical report from the Department of Psychiatry of Kowloon Hospital dated 17 November 2017 in which he was said to have been receiving psychiatric treatments since 2012 with three psychiatric admissions to Castle Peak Hospital in 2014, 2016 and 2017 with the last admission from 27 August to 10 September 2017 when he was diagnosed to be suffering from Paranoid Schizophrenia and Alcohol Dependence Syndrome, and that upon discharge he was given antipsychotic medication with follow-up at Kowloon Hospital Psychiatric Centre.

15.Apart from appearing to corroborate what he had stated in his affirmation about his mental conditions and/or problems allegedly caused by his ordeal in India, it is not exactly clear what other purpose the applicant had with the production of this report to this court as there was no letter or note of any sort from him that accompanied it, but putting his case at the highest that if he had wanted to explain his absence for the scheduled hearing of 4 August 2016 before the Board, this report does not state that he was on that date unable to attend the hearing for medical reason, and for that matter neither do the said two letters from Castle Peak Hospital referred to in paragraph 13 above.  In any event there is no evidence to suggest that the applicant did request for another oral hearing before the Board in the process of his appeal.

16.If on the other hand this report and the two letters from Castle Peak Hospital were produced to support the applicant’s claim of threats from SD that allegedly cause him to escape to Hong Kong, they do not in my judgment advance his case any further as it is plain from both decisions of the Director and the Board that they accepted his accounts of his dispute with SD and his son and the resultant threats and assault inflicted on him, but that it was also their unequivocal findings that they do not fall within the minimum requirements of any of the applicable grounds, and that in any event state protection and reasonable internal relocation alternatives would be available upon his return to India.

17.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 8^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