Mohammed Salik v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL628/2017

[2018] HKCFI 1308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 628 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 25 May 2014 and was permitted to remain for 14 days but overstayed and was subsequently arrested by the police on 15 June 2014.  He then lodged a non-refund protection claim which the Director of Immigration (“the Director”) rejected on 29 April 2016 and 17 July 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 15 September 2017.  He requested an oral hearing but appeared in person on 31 January 2018 because his application for legal aid was 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 paternal uncle due to a land dispute.  Both the Director and the adjudicator of the 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 1983 in Kolkata, had nine years of education before working as a driver and a salesman until 2014 with a two-year stint in Singapore from April 2010 working as a cleaner.  The applicant’s grandfather owned two plots of land and when he died in 1999, the applicant’s father and uncle sold one plot and split the proceeds equally between them.  The other plot was shared equally between the two men but the applicant’s father later transferred his share in this second plot to the applicant’s mother.  The applicant’s father used the proceeds from the sale of the first plot to buy a family home and land which was put in the applicant’s mother’s name.

4.The applicant’s uncle was an All India Trinamool Congress (“TMC”) party leader and influential in the party. After the applicant’s father died, his uncle began to harass the family because he wanted the applicant’s mother to transfer the ownership of the family home and land to him.  He claimed he should be the rightful owner.  He would come and insult the applicant’s mother and even physically jostle with his older brothers.  In December 2009, the uncle invited the applicant’s two older brothers to meet him at the second plot to discuss his demands but his two brothers were killed on the way to the meeting by a hit and run lorry driver.  The police investigated and concluded it was an accident but the uncle hinted to the applicant’s mother that he was responsible for their deaths.

5.His mother asked her own brother to help and intervene to deal with the paternal uncle but the uncle was too powerful.  Thereafter the uncle became aggressive and searched the applicant’s mother’s home with a bunch of men to try and find the land title deeds.  They ransacked her home but left empty-handed.  It was reported to the police but they said it was a personal matter and not a police matter.  The uncle did however, stop harassing the family for a while after that police report.  So the applicant went to Singapore to work in April 2010.  Whilst he was in Singapore the uncle began to harass the applicant’s mother again she moved to live with her brother.

6.When the applicant returned home to India his mother joined him but his uncle began threatening him, damaged their property, stole their valuables and even brought a gang to their home to beat up the applicant.  He received medical treatment and stitches to a head wound. That night the applicant and his mother went to stay with her brother for two weeks.  When they returned home the uncle arrived immediately and continued to threaten the applicant’s health and safety.  These threats went on until it was suggested the applicant leave India for Hong Kong to seek asylum.

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.  He correctly set out the law and key legal principles relevant to the four applicable grounds.  The applicant elected to answer questions.  The adjudicator set out his evidence and his analysis of it.

9.The adjudicator noted that the applicant for the first time since he lodged a claim mentioned in the appeal hearing that his uncle wanted his mother to also transfer to him her ownership in the second plot, not just the family home and land.  When asked why this was not mentioned before, the applicant’s explanation was unsatisfactory after initially not being able to answer the question.  He blamed the duty lawyer for not recording this in his claim form and then blamed the Immigration officer for not recording this in the record of the screening interview.

10.The applicant was also unable to properly answer why he says that his paternal uncle was a leader of the TMC.  His answer was vague and equivocal; he clearly had no knowledge of his uncle’s position if he had one at all.  The adjudicator did not believe that his paternal uncle was a leader of the TMC as alleged.  The adjudicator found these discrepancies and issues affected the applicant’s credibility.

11.The adjudicator found that when he applied his findings to all four grounds, the applicant had not made out a case for non-refoulement protection.  On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by his uncle and that there was a real risk of torture by his uncle if he returned to India.  The adjudicator found that the applicant’s claim had failed to invoke the protection of BOR 2 or BOR 3.  Lastly the adjudicator found his fear of ill-treatment arising from a personal family dispute did not fall within the definition of persecution and his persecution risk claim failed.  The adjudicator confirmed the decision 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 him 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 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 treat the appeal as a rehearing or a de novo hearing and failing to obtain relevant Country of Origin (“COI”) information for himself.  The Director is accused of failing to conduct sufficient enquiry into relevant COI conditions and taking into account relevant considerations as well as failing to give reasons for rejecting his BOR 3 risk claim.

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 these grounds against the Director.  A reading of his decision shows he considered relevant, objective, ample and up-to-date COI information.  He also gives full reasons for his findings and conclusions as well as a rejection of the four applicable grounds.

16.There are no particulars put forward in these grounds against the adjudicator of the TCAB.  He clearly considered the appeal afresh and de novo.  Both decision-makers found the applicant’s case did not amount to torture and/or CIDTP and/or persecution. The adjudicator went further and did not find the applicant credible or believable.  The applicant did not rely on the extended concept of State acquiescence therefore; the decision-makers did not need to consider this concept in depth.  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.

17.In paragraph 4 of the applicant’s affirmation the adjudicator is accused of failing to obtain relevant COI information.  There is a quote taken from the decision and the quote alleged that the adjudicator merely made reference to the applicant’s papers and evidence in assessing his claim.  However, this quote cannot be found in this adjudicator’s decision and when the applicant was questioned about this during the oral hearing he could not understand the point that the quote did not come from this adjudicator’s decision.  He could not answer the question.  It would appear that the affirmation is referring to either another decision or it is deliberately misleading.

18.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.

19.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