Amburose Edward v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 185/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of India. He is now aged 49 (DOB: 18 April 1969).
Cited by 3 cases · Cites 2 cases
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HCAL185/2018 [2018] HKCFI 2053 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 185 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of India. He is now aged 49 (DOB: 18 April 1969). 2.The Applicant claimed he would be harmed or killed by the Hindus of the Thevar caste in his home village. 3.The Applicant said he was a Christian belonging to the Vellalar caste. He lived in Poondi, Tamil Nadu, India. The majority of people in Poondi were Hindus. Some of them were associated with a politician from Bharatiya Janata Party (“BJP”). The politician was called Pon Radhakrishnan, who was a minister of the India government and an influential leader of the Thevar Hindus. 4.The Applicant had been given duties in his church since the age of 13. When he was 21, he began proselytising the villagers. He would lead young people of age 10-12 to visit villages to preach Christianity. The Applicant said that between 1990 and 2002, he had attracted hundreds of villagers including Hindus to convert to Christianity 5.In May 1996, the Applicant was attacked by three villagers. He got hurt. After this incident, he experienced more problems including verbal abuse from the Hindu villagers. 6.The Applicant ran a dried-seafood business That required him to travel Hong Kong at times. Between 2000 and 2006, he had travelled frequently to Hong Kong for business. 7.The Applicant came to Hong Kong again on 28 July 2014 for business. He phoned his wife every day from Hong Kong. However, on the eighth day, he lost contact with her. The next day, the Applicant was able to find his sister-in-law Leelamary. She told the Applicant that some 40-50 villagers belonging to BJP had come to his house on the previous day. At that time, only the Applicant’s mother was at home. Those villagers accused the Applicant had stolen a statue of the god Murugan from their Hindu temple and taken it to Hong Kong for sale. They injured the Applicant’s mother, who had to be admitted to the hospital later. 8.The Applicant subsequently learnt further from Leelamary that his wife and daughter had gone missing. His brother’s family had also fled from the village. Leelamary was scared. She told the Applicant not to contact her anymore. The Applicant then lost contact with Leelamary. He could not get in touch with his family either. 9.The Applicant sought non-refoulement protection in Hong Kong. He said he would be harmed by the Hindu villagers of the Thevar caste, who had the backing of Pon Radhakrishnan. 10.The Applicant said he was a Christian so the police would not help him since the ruling party BJP was a party of Hindu nationalists. 11.The Applicant said he could not relocate himself to other areas in India because he could only make a living as dried-seafood businessman in South India. He also claimed his enemies could find him even if he relocated himself to other parts of the country. 12.In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 13.On 8 February 2018, the Applicant applied for leave for judicial review. Timeline 14.Things happened in this order: –
Respondents 15.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 16.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 17.In Re: Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [5] The Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with the current application in relation to the Board's decision only. The Board’s decision 18.The Director did not accept the Applicant faced any torture risk, persecution risk or CIDTP risk (BOR3 risk). He also found reasonable state protection and internal relocation were available to the Applicant in any event. On 8 June 2016, the Director refused the Applicant’s claim with respect to those three applicable grounds. 19.On 2 May 2017, the Director further refused the Applicant’s claim with respect to life risk (BOR2 risk). 20.The Applicant appealed to the Board. 21.The Adjudicator interviewed the Applicant on 9 May 2017. The Applicant told the Adjudicator something different from what he stated to the Director.[6] He said he was persecuted in India because he had converted a high-class Thevar Hindu called Jayakrishnan to Christianity, who in turn had helped the Applicant to convert many others to become Christians. Jayakrishnan’s brother Murugan was a high-rank person in BJP and the right-hand man of Pon Radhakrishnan. Murugan went after the Applicant for revenge. He led some armed Hindus to look for the Applicant in the church. 22.The above version was very different from what the Applicant told the Director that the Hindu villagers looked for him because they thought he had stolen a statue of the god Murugan from their temple and taken it to Hong Kong for sale. 23.The Adjudicator questioned the Applicant on the stark inconsistency. She did not accept the Applicant's explanation that he made mistake or it was the interpreter’s fault. 24.The Adjudicator considered the Applicant to be incredible, untruthful and unreliable. She only accepted the Applicant was a Christian and that he was attacked in 1996. She found the Applicant had fabricated his non-refoulement claim. The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. She refused the Applicant’s claim with respect to all the four applicable grounds.[7] Grounds of judicial review 25.In his affirmation, the Applicant complained the Adjudicator failed to consider properly the concept of extended state acquiescence; failed to conduct sufficient independent enquiry of COI; failed to take into account relevant information; considered irrelevant matters; failed to consider he was attacked by assailants who accused him of stealing a god statute; failed to consider he had been under severe mental distress; failed to understand BJP’s power in India and how Christians lived in fear; failed to consider his claim properly. Court hearing 26.In Form 86, the Applicant requested a hearing. The hearing took place on 22 June 2018. The Applicant was in person. A Tamil interpreter provided service in court. 27.The Applicant confirmed all the grounds of judicial review were in the documents. He did not elaborate those grounds but only repeated that Hindus caused problems to Christians and that he could not go back to India at the moment. Discussion 28.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 29.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] 30.The Applicant said the Adjudicator failed to consider he was attacked by assailants who accused him of stealing the statute of the god Murugan. The Applicant was wrong. The Adjudicator did consider such claim. In fact, she duly considered such claim in contrast with the Applicant's other allegation that he was persecuted by a person called Murugan because the Applicant had converted Murugan’s brother Jayakrishnan to Christianity. 31.The Adjudicator was entitled not to accept that the stark inconsistency was due to mistakes made by the Applicant or the interpreter. The Adjudicator was entitled to find the Applicant incredible. 32.Since the Adjudicator found the Applicant faced no risks, there was no issue of mental stress. 33.The Adjudicator need not study all COI relating to India. She had sufficient regard of relevant COI for proper understanding of the religious freedom and conflicts in India relevant to the Applicant's case.[9] 34.In light of her finding the Applicant faced no risk that warranted non-refoulement protection, the Adjudicator was not required to consider COI relating to state protection or internal relocation or how BJP abused its power. 35.In fact, even on the Applicant's own account, state protection or extended state acquiescence was not an issue. The Applicant just claimed the India police would not help him. He had never sought assistance from the authorities. There was no evidence that the India authorities had known of the Applicant's alleged situation and then refused to offer protection or acquiesced in it. 36.The Applicant's other complaints are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had duly considered the Applicant’s claim. She had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that she was acquainted with the facts and the law. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in the Applicant’s complaints. Conclusion 37.The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review. Dated 13th day of September 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board’s decision, paras 39-51. [7] Ibid., paras 52-71. [8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [9] The Board's decision, paras 61-63. |
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