Sk Sharafat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL623/2017

[2018] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 623 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 last arrived in Hong Kong on 22 March 2014 and was permitted to remain until 5 April 2014.  He did not leave and overstayed; he surrendered to the police on 13 April 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 27 April 2016 and 15 February 2017.  He then lodged an appeal/petition with the Torture Claims Appeal Board which rejected his appeal on 11 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 15 September 2017 and requested an oral hearing.  He appeared on 31 January 2018 in person because his legal aid application had been refused.

2.The basis of his claim was that if he were to return to India he would be harmed by Trinamool Congress (“TMC”) party members which is the ruling party in West Bengal since 2011 because of his support for the Communist Party of India (Marxist) (“CPIM”).  Both the Director and the adjudicator of the Torture Claims Appeal Board (“TCAB”) set out the applicant’s evidence and case in detail in their decisions therefore, I will only summarise it here.

3.The applicant was born in 1987 in Kolkata, received nine years of education and is married with one child.  His father was a dock worker where there were two labour unions; one affiliated with CPIM and the other to TMC.  In mid-2013 pressure from the TMC union leaders came to head; they pressurised CPIM members to switch their allegiance to TMC or resign from their jobs.  The applicant’s father was told to support TMC or resign but he refused.  The applicant accompanied him to a labour union meeting where he again refused to join the TMC will resign.  The meeting became physical and the applicant grabbed a tree branch to try and protect his father and hit the TMC leader on his shoulder causing him to fall down. The applicant and his father fled the scene.

4.The applicant’s father resumed work two to three days later but continue to be harassed.  The TMC members threatened revenge on the applicant for striking a leader.  The applicant fled and went to a cousin’s home some 30 to 40 minutes away by bus where he remained for a month until one evening he was knocked off his motorbike by vehicle.  The applicant recognised a passenger in the vehicle as a TMC senior official from the dock meeting.  He received treatment in a clinic that day and was released after a few hours.  The applicant did not report the incident to the police.  He went home to recuperate.

5.Not long after, he was approached by four men one of which was a TMC senior official from the dock meeting who threatened to make sure the applicant was readmitted to hospital again.  His friends advised him not to return home and that night his father told him over the phone that senior officials had been to their home looking for him to seek revenge on his assault of the TMC leader.  From mid-2013 to March 2014, the applicant stayed with friends and did odd jobs but did not return home.  His father told him that TMC members were still looking for him at their home.

6.The applicant was employed by a businessman to bring mobile phone accessories from Hong Kong to India and made two business trips to Hong Kong in November 2013 and January 2014.  Since the TMC members were still looking for him the applicant decided on the third business trip to Hong Kong in March 2014 that he would stay in Hong Kong and seek protection.

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 conducted an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles applicable to the four grounds.  She set out the evidence of the applicant and her findings when she applied to the applicant’s case to the four grounds.  She found it noteworthy that the applicant’s father resumed work at the docks two days after the meeting and nothing untoward happened to him.  The adjudicator noted that the applicant had only sustained injury when he was hit by a car that he assumed was deliberate and orchestrated by the TMC.  The injuries he suffered did not require hospitalisation.

9.The adjudicator applied the law to the applicable grounds and his findings, concluding that the applicant was unsuccessful in showing he was at risk of torture within the definition of torture under section 37U of the Immigration Ordinance.  She found that the applicant had not sustained severe pain or suffering that could be defined as torture.  She found that no pain or suffering was inflicted for any one of the listed purposes in that section.  She found no evidence that there was any involvement of a public official; a TMC labour union member or leader are not government officials.

10.The adjudicator considered up-to-date, relevant and objective Country of Origin information to find that there was State protection available to the applicant if he was at any risk in his home district.  She also found that internal relocation, such as to New Delhi or Mumbai, was a viable option to the applicant without undue hardship.

11.The adjudicator found that the applicant was unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The applicant’s fear of ill-treatment was not on account of his race, religion, nationality, or membership of a particular social group; a Refugee Convention reason.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

12.I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

13.The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits both decision-makers failed to inform the applicant that his claim would be assessed in the light of Country of Origin information and they cherry picked at that information.  They also failed to consider the concept of extended State acquiescence.  They failed to consider the applicant’s psychological and mental trauma.  The adjudicator of the TCAB is accused of failing to consider that public officials were involved in torturing him.

14.Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  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. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.  Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

15.There are no particulars put forward in his grounds against either the adjudicator or the Director.  The applicant would have been legally represented before the Director.  His legal representative would have known that the Country of Origin information was relevant.  Because of the lack of particulars, I find no merit in the accusation that the decision-makers cherry picked at information to the detriment of the applicant.

16.Both the Director and the adjudicator of the TCAB did consider the concept of extended State acquiescence.  The applicant made no report to the police or any authority. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.  Moreover, the adjudicator specifically considered whether public officials were involved in torturing the applicant.

17.After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

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 25^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