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

HCAL481/2017

[2018] HKCFI 1581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 481 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 26 February 2014 and was required to leave on or before 4 March 2014.  He overstayed and surrendered to the Immigration Department on 3 April 2014.  He then lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 25 October 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 31 July 2017.  He then filed a notice of application for leave to apply for judicial review on 4 August 2017 and requested an oral hearing which was eventually heard after several adjournments to await the result of a legal aid application on 1 March 2018.

2.The basis of his claim was that if he were to return to India he would be harmed or killed by his creditor Mr Singh because of a money dispute and/or arrested by the police for attempted murder of his uncle.  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 wanted to start a fish and cattle farm with his uncle when he was about 18 years old so he had to borrow the money from Mr Singh, a rich and powerful businessman in his uncle’s name with the applicant listed as one of the debtors.  They borrowed 3 million Indian rupees in late 2011 and had to repay the principal within three years with interest at 1% per month.

4.The applicant took care of the cattle farm whilst his uncle looked after the fish farm.  Business went well from early 2012 until mid-2012 when heavy rain flooded the farm with sewage and agricultural waste which killed all the fish and hurt milk production by the cattle.  From May 2012 they could not repay the monthly payments and were forced to close business in August.  After they sold all the farm equipment, they could only repay Mr Singh 800,000 Indian rupees.  He demanded they settle the outstanding balance of the principal debt within a month but they failed.

5.In late September 2012 several police officers came to the applicant’s uncle’s home and threatened to take action against him if he could not settle the debt; they threatened to frame him with false charges.  In October, the applicant’s uncle was detained by the police, beaten and further threatened before being released.  They also went to the applicant’s home to detain him too but he was out and his brother was told they had come to arrest him for not repaying his loan to Mr Singh.  The applicant then went to live with a friend some 50 km away to hide from Mr Singh and only returned to visit his family at night.

6.The applicant’s uncle was in November or December 2012 ambushed and beaten by some strange men who told him that if he did not repay Mr Singh soon, on the next occasion they would kill him.  Not long after, the applicant was discovered hiding at his friends home by a group of unknown men and ambushed as well; he was assaulted and threatened with death if he did not repay the debt to Mr Singh.

7.In February 2013 the applicant’s uncle was invited to Mr Singh’s home to discuss the debt and offered a drink which poisoned him to death; a post-mortem confirmed that he had died of poison.  A friend of the applicant told him that his uncle’s wife had reported to the police that the applicant had poisoned his uncle and the police were searching for the applicant.  He was scared and took a 10-hour train journey to hide in Rajasthan.

8.Three months after arriving in Rajasthan, one day in May 2013, a jeep stopped in front of him and five men armed with sticks jumped out in front of the applicant.  They claimed to be sent by Mr Singh and threatened to kill him if he did not repay the debt. They started to slap and punch the applicant before he managed to run away.  A friend hid him in an empty farmhouse whilst plans were made to send him abroad but he was found again in August but once again he managed to get away from some unknown attackers and continued to hide.  For five months he lived this way.

9.The whole time he hid in this empty farmhouse there were police as well as unknown men that separately came looking for him but could not find him.  Until one day in January 2014 the applicant saw a police car approached the empty farmhouse where he was but he escaped and hid in nearby fields for hours.  It was not until February 2014 that he went to Delhi because he could finally leave India.

10.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”).

11.The adjudicator treated the appeal hearing as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He considered the applicant’s evidence and credibility; in particular, he set out the approach to be followed when assessing his credibility.  The applicant elected to answer questions and give evidence so the adjudicator asked him to clarify discrepancies and inconsistencies he found in his evidence.

12.After assessing the applicant’s evidence, the adjudicator found numerous material inconsistencies that indicated to him the applicant fabricated his claim.  This applicant told the Director in his initial interview that he had been told by his family that he was in danger in India but did not give any information about the past claims he subsequently went on to develop in his non-refoulement claim form. The adjudicator regarded this as a significant omission which indicated to him that his subsequent claims were fabricated. Moreover, most of his evidence was hearsay evidence, second or third hand, to which the adjudicator attached little weight.  On top of that, his evidence was vague and lacked detail.

13.The lack of detail included material facts such as details of the alleged loan and even then they became inconsistent for example, whether the loan was for two years or for three.  The adjudicator set out in detail in his decision the hearsay evidence he attached little weight to, the inconsistencies and discrepancies as well as the bare assertions and facts that were inherently implausible.  It led to his conclusion that not even the centrepiece of the applicant’s claim was reliable.

14.The adjudicator did not believe the applicant was a genuine claimant and found the applicant was unsuccessful in showing he was at risk of torture, 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.  He confirmed the decision 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’s 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 does not provide particulars but he submits the adjudicator cherry picked information that resulted in an unreasonable finding.  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 because he did not believe he was a genuine claimant.  He set out in his decision his findings and reasons for his findings.  There was no need therefore, to look into COI.  In any event, the applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights.  For the same reason, it was not necessary to assess State acquiescence.  There are no merits in the grounds highlighted above.

18.The applicant criticises the adjudicator for doubting his credibility.  Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding. There is no merit in this ground

19.There are other criticisms of the adjudicator’s findings which I will not disturb. He evaluated the evidence and gave full reasons for his findings.  The applicant attempts to introduce new evidence in his affirmation; he says his sister was recently shot and his home attacked and 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.  He specifically says he was not given any chance during his appeal to provide this kind of information but I find that hard to believe. I would not consider new evidence, even if there were any particulars, in an application of this nature.  I would doubt its veracity when the applicant seems to suggest that his claim is now political and his enemies are looking for him because he and “my party is the main party whom bring this corrupt government into the court.”  See paragraph 15(a). This is the first suggestion of politics being behind his claim. In any event, the court is not to determine the merits of the applicants failed claim.

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 18^th day of July 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