Raj Narayan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 679/2018

[2019] HKCFI 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 679 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 Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who last entered Hong Kong illegally on 10 December 2014 and was arrested on 22 July 2015.  As soon as he was arrested he expressed a wish to claim for non-refoulement protection. This was not his 1^st claim for asylum; he first came in December 2007 but was deported back to India two days later.  He came again in February 2008 and filed a torture claim in May but his application was rejected by the Immigration Department in December 2008. In March 2011, he was sent back to India.  He then returned in December 2014.

2.After he lodged a non-refoulement protection claim when he was arrested in 2015, the Director of Immigration rejected it on 22 August 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 April 2018.  He then filed a notice of application for leave to apply for judicial review on 19 April 2018 and requested an oral hearing which was set down for 1 March 2019.  The applicant appeared in person on that date.

3.The basis of his claim was that he would be harmed or even killed if he returned to India by members of an opposition party called the Samajwadi Party (“SP”).  He himself was a member of a political party called the Bahujan Smaj Party (“BSP”).  In or about 2007 he had become a member and was responsible for publicity which included inviting and recruiting people to join the party.  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.In April 2007 the applicant with about 30 other BSP members had an argument and a fight with a group of about seven to eight SP members.  In fact, the applicant beat a senior male leader of the SP with his bare hands and wooden sticks.  When his opposition was injured and bleeding from a head wound, the applicant fled the scene.

5.The applicant was subjected to two revenge attacks in July 2007 and later in November 2007.  The injured senior leader of the SP tried to attack the applicant with a group of about 10 people, some armed with pistols.  He was able to escape with only a leg injury.  On the second occasion the same injured senior leader with about eight other members located the applicant in a bazaar and attacked him with sticks and long knives. The applicant escaped without any serious injury.  He did not report these two attacks to the police because the SP were very influential with members of the police force.  He also did not seek any medical treatment.  The applicant received death threats from the SP.  He left India for Hong Kong for the first time in December 2007.

6.After he was deported in March 2011 when his torture claim application failed he stayed at home for about three months before moving to another state because he said members of the SP knew he was home and were looking for him.  He lived for one year with a friend working as a plumber and then after a year moved again to stay with another friend.

7.However, in 2013 the applicant heard that the SP shot a senior leader of his party, the BSP, as well as bodyguards and a personal friend of the applicant’s.  He then moved around to stay under the radar and even met his family members secretly.  Because of those killings, he entered Hong Kong again illegally in December 2014.  His family have told him that members of the SP still came to his home to look for him but did not cause any harm to his family.

8.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”).

9.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected to answer questions and give evidence.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  During the hearing, the applicant agreed with the adjudicator that there was free movement in his country and when he lived in Delhi or Mumbai he was safe.  He said it was unsafe for him to return to his home town in the state of Uttar Pradesh to visit his family members.  He agreed he was safe outside of his home town but it was expensive and inconvenient for his family to visit him, in particular his 70‑year‑old father.

10.The adjudicator set out the Country of Origin (“COI”) information that he relied on and read that the SP were defeated by the BJP in the last general election in India.  In 2014 it won only five seats whereas the BJP has a clear mandate of 282 seats.

11.The adjudicator found the applicant’s evidence and case no more than bare assertions but did not find him and unreliable witness in the main due to the low standard of proof placed on the applicant.

12.The adjudicator applied his findings to the applicable grounds and the law and found that the applicant had failed to establish a claim under any ground.  There was no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance; the torture risk claim failed.  There was no evidence of any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP; his BOR 2 and BOR 3 risk claim failed.  Lastly, he could not establish he had a well‑founded fear of being persecuted for reasons set out in the refugee convention if he was refouled to India; his persecution risk claim failed.  The adjudicator found that in any event even if there was a basis for his claim, state protection was available and internal relocation viable for the applicant even on his own evidence.  The adjudicator confirmed the decision of the director.

Leave to apply for judicial review

13.The adjudicator analysed the material, claim as well as the evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application.  He puts forward several grounds and I find them all to be without merit and substance.

14.In the first ground, the applicant suggests that the appeal bundle was served only days before the appeal hearing and because it was in English, he could not afford to have it translated.  At the appeal hearing himself he was therefore confused and did not have a full understanding of the proceedings however, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter present at the hearing to interpret his previous evidence, statements and the director’s submissions that were in the appeal bundle.  In any event, he made this application and affirmation in English which casts further doubt on this ground.  Although I do accept he has said that he had assistance in writing this affirmation.  I nonetheless, find no merit in this ground.

15.In the applicant’s second ground, he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at para 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.”

In any event, the adjudicator found that although the evidence from the applicant was no more than bare assertions, he did not go so far as to find him an unreliable witness.  There is no merit in this ground.

16.The third ground is a complaint that the adjudicator relied on COI information that was not officially recognised, hearsay and out‑of‑date.  However, there are no particulars supplied by the applicant to support this ground.  Having considered the COI referred to by the adjudicator, it is obviously reliable and up‑to‑date.  I find no merit in this ground.

17.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.

18.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, paras 14 to 17. I refuse leave to apply for judicial review.

Dated the 21^st day of March 2019

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