Gurinder Preet Singh and Another v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1762/2018

[2021] HKCFI 2750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1762 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and hearing Counsel of Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicants are husband and wife.  This is their joint application for leave to apply for judicial review of the Decision dated 9 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.Leave was granted to the applicants to amend Form 86 as per the draft submitted by their legal representative.

3.The applicants are legally represented.  Counsel Josh Baker acted for the applicants on the instructions of Messrs. Patricia Ho & Associates, solicitors.

The applicant

4.The applicants are Indian nationals.  The husband came to Hong Kong on 24 July 2014 as a visitor and was permitted to stay as such until 7 August 2014.  He overstayed and surrendered himself to the Immigration Department.  He lodged his non-refoulement claim on 29 September 2014.  According to the Director’s Decision [18], the husband and the wife were released on recognizance since 11 August 2014.

5.They claimed that if refouled, they might be harmed by Mr. Kaka and the local Indian authorities.

6.As summarized by the Board in its Decision[1], the 1^st applicant claimed that he gave money to corrupt parties who claimed to be able to assist him to work overseas.  His friends also joined him and paid money to the corrupt parties.  Then the corrupt parties disappeared.  The applicant was subsequently accused of involvement in the scam.  He submitted that as a result, he was kidnapped, assaulted and pursued by ex-friends and /or people that he knew who also lost money, and who had connection to the politician Kaka, who has connection with the ruling party and police.  He also claimed that he had been jailed and had current legal matters outstanding.

7.Kaka had used his influence to do the following: prevented an investigation into the real culprits of the original fraud, Mr. Lakhanpal and Dr. Bajwa; changed the Deputy Superintendent of police in Dharamkot; delayed his detention in jail; encouraged the police to withhold relevant documents; organized for him to do additional jobs whilst in jail; limited his time with visitors whilst he was in jail, and had the officers in the jail target him.  After his release, Kaka made the police harass his business, list him on the lookout notice and file a false case against him.

8.Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

9.The Director considered their application in relation to the following risks:

a.  torture risk under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By Notice of Decision dated 26 January 2017 (the “Director’s Decision”), the Director refused their claims for the reason that their claims were not substantiated.  The Director considered the evidence and found that the level of future risk of harm upon their return to India was low [22]; that the matter was a monetary dispute with the corrupt parties without state involvement [23]; that state protection was available to them [24] and internal relocation to, for example, Delhi, the capital with population of about16.7 million, was an option open to them [28].

The Board’s Decision

11.The applicants appealed to the Board against the Director’s Decision and they attended a hearing before the Adjudicator on 11 May 2018.

12.By its Decision, the Board dismissed their appeal and confirmed the Director’s Decision.

13.The Board considered the evidence and had raised questions for the applicants.  The Board agreed with the Director’s Decision that the risk of them being harmed if they returned to India was low and considered that Kaka, after a period of about 7 years since the 1^st applicant left India, might not be interested in him anymore.  The Board further found that the applicants’ evidence was not credible on their evidence on the issues of mandatory registration system in India, the influence of Kaka in India and why the 1^st applicant’s mother still lived in the same premises after she disowned him.  At paragraph 99 of the Decision, the Board said that the 1^st applicant was prepared to provide false information to the Board to support his claims [99].  The Board further said that even if the applicants’ story were believed, their risk was only localized and internal relocation should provide a remedy for them.  The United States State Department Report of India 2013 recorded the law provides for freedom of internal movement, foreign travel, emigration and repatriation, and that the Indian government respected these rights [103].  Full reasons for the Board’s Decision are set out in paragraphs 90-104.

Application for leave to apply for judicial review

14.The applicants have filed their joint application for leave to apply for judicial review of the Board’s Decision.  Counsel submitted the following grounds in support of their application:

(1)  The Board’s findings that the Aadhaar system, ie the mandatory registration system was not compulsory, was not in force in 2014 when the applicant first claimed, was not centralized and had issued to only 614 million of 1.3 billion people (about half of the population) are all faulty.

(2)  On the basis that the Board did not have credibility in the applicants’ evidence, it rejected their claim on BOR 2, BOR 3 and Persecution.  No reasoning was given in support of the Board’s conclusion that the ‘false case’ was incredible – no reasoning was set out in the Board’s Decision as to why corroboratory documents tending to show that the false case occurred, were not accepted as authentic and relevant.

(3)  The Board failed to consider the documents submitted by the applicants in support of their claim that the first information report was a “false claim”, a malicious prosecution.  Pursuant to the first information report, a warrant of arrest had been issued against the 1^st applicant and he is liable to immediate detention on arrival in India, subject to the similar situation when he was detained in jail in India in May 2011.  The warrant of arrest has made the risks nationwide risks instead of localized risks.  The Board also failed to conduct investigation into the matter by making search at the High Court of Punjab to the Bail Decision, which set out the 1^st applicant’s contentions that he was the victim of a fraud perpetrated by Dr. Bajwa and Mr. Lakhanapl, his allegation of being kidnapped, his application for the return of the blank documents, his detention since May 2011 and his bail by the magistrate at Moga.  In essence, the Board had failed in its duty of joint endeavour as decided in TK v Jenkins.  Lastly, the Board failed to ask if it would be reasonable or unduly harsh to the applicants for relocation.

(4)  The Board failed to make any risk assessment of the prospect of ill-treatment in prison or custody in his detention in May 2011, treatment of this nature being capable of amounting to BOR 3 risk.

(5)  The Board failed to consider if the 1^st applicant would have a fair trial in India, given his allegations that Kaka had great influence over the police, the prison and the bail application.  The question (if asked by the Board) would have been whether the trial of the first information report might have been summary in nature, conducted with a total disregard for the right of the defence.

DISCUSSION

The general legal principles

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI[2] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.I shall, first of all, consider the Notice of Appeal, in which the applicant had set out his grounds of appeal against the Director’s Decision for the Board’s consideration.  I shall then consider counsel’s submissions in relation to the Board’s Decision.

Notice of appeal [235][3]

19.The applicant said:

“If I return to India, my wife and I will be tortured and killed.  I am wanted by the Indian Police because of my issue with Mr. Singh Kaka Lohgari “Kaka”, a member of the Congress party.  I was detained twice in 2011 and 2014 respectively.  After I fled India in 2014, the Indian police continued to look for me by going to my parents’ house.”

20.He then set out the Director’s mistakes in refusing his claim, which I shall summarize below:

(1)  The Director had not taken on board that the police was not acting despite his continuous complaints even when done to the highest rank of the police.

(2)  The Director had not taken into consideration that his bail application was purposely delayed and took 5 months instead of the average 1 month.

(3)  The Director should make inference that the man who had telephoned him asking him to compromise with Kaka collaborated with Kaka.

(4)  The Director was wrong to say that Kaka had played no part in the police raids on his shop between 2011 and 2014 as such incidents never happened before he had dispute with Kaka.

(5)  The Director was wrong to suggest the internal relocation alternative was available to him because a Stranger Verification Form (“SVF”) has to be filled in when he moves to another place and Kaka would be able to trace him.  He did not fill in the SVF because he was living in hiding, which cannot be a long-term relocation.

Counsel’s submissions in relation to the Board’s Decision

21.Counsel relied upon the judgment in India of KS Puttaswamy (Retd) & Anor v Union of India & Ors, Writ Petition (Civil) No. 494 of 2012, 26 September 2018 to say that the Central Government had a power to enforce compulsory registration and issue national identity cards by legislative amendment.  However, counsel agreed that the law was not yet passed on the date of the Board’s Decision.

22.The Board was alive to this issue as it had raised it with the applicant at the hearing.[4]  The main issue was that the applicant raised this mandatory registration of Aadhaar card to say that he could not return to India because he had to be registered compulsorily and Kaka would get the record and know his whereabouts.  It was on this basis the adjudicator considered that he was not telling the truth.  The Board also suggested to him that he relocate somewhere where the Congress Party, of which Kaka belonged was not in power.[5]

23.The Board would only consider the evidence before it at the time of the hearing[6]. The adjudicator raised the issue by reference to the COI to the applicant, asking for his opinion.  He was unable to give any satisfactory explanation to her.  It is therefore not acceptable that the Board was wrong to have found the facts.

24.The fact that the law was subsequently passed to have compulsory registration cannot affect the adjudicator’s assessment of the applicant’s credibility.  The applicant was given an opportunity of giving his explanation when the issue was raised by the adjudicator.

25.Counsel submitted that the Board had given no reason in support of its conclusion that the “false case” was incredible – there being no reasoning as to why corroboratory documents tending to show that the false case occurred, were not acceptable as authentic and relevant.  Counsel referred to the applicant’s petition in the High Court of Pubjab and Haryana, Crl. Misc –M No. 17158 of 2011 (O&M) dated 20.9.2011 (“the petition”)[7].

26.From a fair reading of the Board’s Decision, it seems apparent that the Board did not challenge the authenticity of the documents submitted.  What it found incredible is the falsity of the charge, not the charge sheet.  The meaning bears out through the questions and answers between the adjudicator and the applicant.  Of course, the applicant’s inconsistent answers to the question of how much he had paid the fraudsters also affects his credibility.  See paragraphs 58-66 of the Board’s Decision.

27.In the petition for bail, the applicant set out his circumstances in support of his bail.  The document also recorded that counsel for the State and the complainant submitted that money was paid to the petitioner, the applicant.

28.If the Board did not believe that the charge against the applicant was a false charge, the applicant is an accused under the charge.  Whether he is guilty of the charge is for the court in India to determine.  The fact remains that the applicant has failed to answer his bail granted under his petition to the High Court.

29.Counsel submitted that a warrant of arrest had been issued against the applicant.  He would be arrested immediately at the India airport by police.  This may be the case as he has failed to answer his bail.  He is also being charged under the allegation of fraud as raised by the complainant as mentioned in the petition.

30.From the Board’s Decision, it is quite clear that the Board had taken all the circumstances as mentioned in his petition.  See paragraphs 6 and 7 above.

31.As to BOR 3 risk, the Board did not accept that there is a genuine and sustainable risk of the applicants being subject to the alleged mistreatment, which is a very high threshold that must be surmounted to establish each of the requirements.  The Board, having considered the relevant factors, did not accept that there are substantial reasons for believing, or strong grounds for believing, if removed from Hong Kong, the applicants, either individually or together, would face a real risk of being subjected to such treatment. [124]

32.The Board has taken into account of what the applicant said when he was jailed for about 4 months and the conditions of the prison.  Obviously, it was not satisfied that those conditions would reach

“the very high threshold of the requirements for establishing CIDTP, exemplified by instances where the mistreatment involves “actual bodily injury or intense physical or mental suffering” or mistreatment of an intensity “capable of breaking an individual’s moral and physical resistance”…”[8]

33.The applicant relied upon the case of Mohammed Polash [2018] HKCA 417, Lam VP to say that the Board had not considered the question of fair trial and made no enquiry about the state of Indian law and whether COI suggested that a thoroughly unfair trial might proceed.

34.In the Mohammed Polash case, the applicant was charged with murder.  He was convicted and sentenced to life imprisonment in his absence.  The sentence of life imprisonment passed after a trial in the absence of the applicant is unlawful because of Art 10 and 11of BOR, Art 14 of ICCPR, Art 6 of ECHER and Art 3 of BORO (CIDPT).  Before the Board, there was an application to remit the case to the Director for considering the new evidence about the applicant’s conviction in Bangladesh.  The Board refused to grant the adjournment and dismissed the appeal.  The application for leave to apply for judicial review of the Board’s Decision on this basis was refused.  The Court of Appeal held that although the burden of proof is on the applicant, it was a special case that high standard of fairness decided in Secretary for Security Sakthevel v Prabakar (2004) HKCFAR 187 at [53] to [55] should apply and the Board should obtain expert evidence on this issue whether such conviction can be set aside and if so, on what conditions.

35.This case differs from the above case.  The issue of a fair trial in India was never raised by the applicant before the Board in his Notice of Appeal.  His case is a case of fraud for which a trial has not even taken place because the applicant did not answer his bail.  The sentence for a charge of fraud should not be life imprisonment.  Therefore, this is not a special case with similar features in Mohammed Polash.  There is no evidence to show that criminal matters will not have a fair trial in court.  The applicant is now legally represented.  There is no evidence from counsel to show that the judicial system of India is unfair.  In fact, in his petition at the High Court of India, the court, having considered that the applicant being charged with fraud, refrained from making assessment on the merit of the case.  In view of the fact that the applicant had been detained since 4.5.2011, some 4 months at the hearing, the court granted him bail.  The applicant has no complaint about this decision.  However, he did not honour his undertaking to the court.

36.In my view, it is unnecessary to consider internal relocation since the Board did not accept falsity of the charge.  The 1^st applicant is wanted because he had jumped bail and he would, in the normal circumstances, be arrested immediately upon his entry into India.  However, this is not a valid ground for the applicants’ application for non-refoulement.

37.For the reasons above, the applicants’ grounds fail.

38.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

39.There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.

CONCLUSION

40.I refuse to grant them leave to apply for the intended judicial review.  Accordingly, I dismiss their application.

Dated the 17^th day of September 2021

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] Page 109 of the hearing bundle

[2] Country of origin information

[3] Page number of the hearing bundle

[4] Para. 77, page 103 of hearing bundle

[5] Para.80

[6] Ubamaka Edward Wilson v Secretary for Security & Director of Immigration (2012) 15 HKCFAR 743 §176  “In the Strasbourg context, the Court went on to state that the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.^[6]”

[7] Annex 2 to Applicant’s Skeleton Argument

[8] Ubamaka Edward Wilson v Secretary for Security & Director of Immigration (2012) 15 HKCFAR 743 §182