Masih Maikal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL757/2017

[2018] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 757 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 28 July 2010 and was permitted to remain until 11 August 2010.  However, he did not depart and overstayed; he was arrested by the police on 28 December 2012, over two years later, for overstaying.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 19 February 2016 and 7 July 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 27 September 2017.

2.The applicant then filed a notice of application for leave to apply for judicial review on 11 October 2017 and requested an oral hearing which was set down for 21 March 2018.  The applicant appeared in person but on that day requested an adjournment to apply for legal aid.  The reason he had not applied earlier was because he did not know about legal aid.  His application was refused; a lack of knowledge of legal aid was no excuse.

3.The basis of his claim was that if he were to return to India he would be harmed or killed by Lakhwinder Singh, the head of the Wanjha Wala village council and supporters of the Shiromani Akali Dal party (“SAD”) because the applicant refused to join the SAD.  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 need to summarise it here.

4.The applicant’s family have been supporters of the Indian Congress Party for generations.   The applicant’s father was murdered in 1995 and the applicant believed it was supporters of the SAD who killed him because he had refused to join their party before the village council elections prior to his murder.  The Congress Party won those elections.  In 2005, when the applicant turned 18, he became an official supporter of the Congress Party and supporters of the SAD asked him to join their party but he refused.

5.In 2009 the head of the village council was from the SAD and he asked to meet the applicant.  The applicant went to the meeting alone where he met many SAD members.  He refused an offer from the head to join the party for a financial remuneration; he was told to take care of himself when he left.  After the village elections at the end of 2009 or early 2010 the applicant was attacked whilst riding his motorbike by seven or eight people he believed were SAD supporters with baseball bats and daggers.  He suffered multiple wounds and he took three to four months to recover.  He still bears the scars.  He did not report this attack to the police immediately because he believed the SAD were following him and watching him whilst he was recovering at home.  He tried to secretly file a complaint at the police station in around March 2010 but he saw armed people waiting outside the station and believed the village council head had given an order to ensure he was prevented from filing a complaint.  As he rode away from the station the armed men chased him and fired at him but he escaped uninjured.

6.The applicant immediately went to another city some 300 km away to live with a friend of a relative. However, those armed men went to the applicant’s home and threatened his family so his brother revealed his location. The applicant immediately went to stay with acquaintances in New Delhi and remain there for two to three months until the SAD could not find him in his previous location and tortured his family and threatened his mother at gunpoint until his brother revealed his New Delhi location.  This time his family arranged for the applicant to fly to Hong Kong.  After that, when the SAD learnt he had left India, they stop harassing his family.

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 applicable to all four grounds.  The applicant was legally represented at the appeal and elected to give evidence.  He added two new claims during the appeal and that was he feared harm if refouled because of his religion; he was a Pentecostal Christian from the Punjab.  He also identified for the first time a relative to whom he still owed money in India as his uncle and because he had not repaid him, he feared harm from him.

9.The adjudicator analysed and assessed the applicant’s evidence and found that much of his evidence was hearsay and whilst hearsay is not inadmissible, he placed reduced weight on it.  He considered the applicant’s own evidence in the appeal and in answer to his own counsel’s question to describe his political activities, the applicant stated he was a supporter of the SAD.  His own counsel repeated the question four times and he repeated his answer three times and it was only on the fourth time the question was asked did he correct himself and claim to be a supporter of the Congress Party instead of SAD.  The adjudicator did not accept his explanation for such a monumental mistake.  To claim to support the opposition once could arise from nervousness but not three times.  He found it undermined the credibility of the applicant especially when he took into account the implausibility of other aspects of his claim.

10.He found it implausible that two months after the SAD ambushed him, they were waiting for him outside a police station armed and then shot at him when he fled; shot at him in a public place outside a police station.  There were also inconsistencies between the evidence he gave during the hearing about this incident and in his non-refoulement claim form.  There were also inconsistencies in the dates of the elections he allegedly assisted in as well as what elections he worked for; the adjudicator set out those inconsistencies and discrepancies in detail in his decision.  What he concluded was that despite the scars to his arms and legs, the adjudicator did not believe he incurred them in the way he claimed.  He did not believe that he was a credible witness who was a supporter of the Congress party and was sought after as well as hounded by the SAD to join them. The adjudicator did not believe he left for Hong Kong in fear of SAD members; he fabricated his claim in order to apply for non-refoulement.

11.The adjudicator dealt with the applicant’s new claim that his uncle may inform the SAD supporters of the applicant’s return to India as a way of punishing him for failing to repay his debt.  The adjudicator did accept that a relative funded his travel and he may well owe money to his uncle but since he did not find it credible that he faced a real risk of prescribed harm from any particular member of SAD, he rejected the claim that his uncle may inform on him if he returned to India. The applicant added that his uncle may simply kill him himself for not repaying the debt but the applicant has had no contact with his uncle since arriving in Hong Kong.  There is no evidence his uncle is motivated to hurt him.  It would appear that this claim was invented at the appeal hearing.  There is no credible evidence, therefore no real risk that the applicant faces any harm from his uncle.

12.At the appeal hearing the applicant raised a further new claim that he feared harm because he was a Pentecostal Christian and his mother is a pastor.  Just prior to the hearing a report from a website, “The Quint” dated 17 July 2017 reported a shooting of a Christian pastor in Ludhiana, Punjab was submitted to the TCAB.  The applicant submitted that the shooting report indicated that as the son of a pastor he was at risk of harm.  His siblings in India were not harmed because they were married but that made no sense because he too was married.  The applicant then gave evidence that it was his mother’s co-pastor that had been shot by Sikhs.

13.The adjudicator asked him how many pastors there were in her church and had any harm come to the children of those pastors and he oddly replied there were 25 other pastors and 24 of whom were childless and the only other one who had children was the one murdered.  The applicant then added that the Sikhs had specifically warned the applicant’s mother not to preach but could give no more details about these warnings and then said there were threats.  All this happened conveniently before the appeal hearing.

14.The adjudicator being mindful of the high standard of fairness required, gave the applicant’s legal representative further time to prepare submissions and produce Country of Origin information (“COI”).  Both parties did produce COI for his consideration and he carefully referred to the COI in his decision and whilst he was willing to accept the applicant was a Pentecostal Christian, he believed the new claim was a fabrication for the appeal hearing in an attempt to strengthen his application for non-refoulement.  The adjudicator did not believe his mother was a pastor who had been threatened by the Sikhs not to preach.

15.As a result of his careful assessment of the applicant’s credibility and as he did not find the applicant a genuine claimant, the adjudicator concluded 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

16.The supporting affirmation lists the following as grounds for seeking leave:

(1)  his lack of legal representation before TCAB/miscarriage of justice;

(2)  the lack of language assistance given to him during the appeal process; and

(3)  insufficient reason given for rejection of BOR 2 risk by the Director.

17.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition.  The applicant submits that for a high standard of fairness to be maintained he should have been provided with legal representation.  The applicant was provided with Counsel through the duty lawyer scheme before both the Director and the TCAB.

18.He also complains that he should be provided with legal representation for his application for leave to apply for judicial review.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.  As I have said above, he did not apply for legal aid and I refuse him an application to adjourn this hearing to make such an application.

19.In the applicant’s second ground, he complains the duty lawyer service refused to translate his “NCF” despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate which is why he asked for a translation.  During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly.  I bear in mind that the applicant was legally represented before the Director and the TCAB.  If there had been issues, the applicant would have been able to particularise details here in his affirmation.  Moreover, this application and affirmation were in English made by this applicant with an apparent lack of language assistance from the Hong Kong government.  The applicant’s second ground is also without merit.

20.The applicant’s third ground although it is a complaint against the Director when he has not proposed him as a respondent, I will still deal with it.  He suggests no reasons were given for rejecting the BOR 2 risk claim.  The notice clearly refers to the Director’s findings in his previous decision of 19 February 2016 and applies it to Article 2.  He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision.  In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk.  Even if this was an application that included the Director, this ground would have no merit.

21.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application, I do not find any ground that shows there was an error of law 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.

22.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 8^th day of August 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