HARJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1981/2018

[2020] HKCFI 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1981 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is an Indian national. He arrived in Hong Kong on 15 October 2015 with his wife as visitors. They were allowed to stay until 29 October 2015. On 30 October 2015, he surrendered himself to the Immigration Department and raised a non‑refoulement claim.

3.  He claimed that if refouled, he would be harmed or killed by the family members of his wife, Rajveer, namely, her father, brother and paternal uncle because they objected to his inter-caste marriage, dishonouring her family, he being from the Jatt caste while Rajveer was from Kamboj caste. His wife had given birth to a son. She had made her separate non-refoulement herself. But now she had withdrawn her application and returned to India with her son. This was because she could not bear the stress of living without her family. According to the applicant, she was not harmed by her family in India. However, he maintained that her family members would harm or kill him if he returned to India.

4.  He was working as a taxi drive in India whilst Rajveer worked as a teacher. She had received university education. Her family is very wealthy and her father is a landlord. Despite objection from her family, she married with the applicant. One week after their marriage wedding, they went to Rajveer’s family. Whilst he was taking a bath, Rajveer overheard the conversation of her father, her brother and her paternal uncle saying that they were going to kill her and her husband. She told the applicant and whilst they were leaving, they were attacked by her family members. They beat him with bare hands. They punched and kicked all over his body. They also beat Rajveer and pulled her hair. The neighbours came and they stopped. They warned them not to report the incident to police or they would frame him up with a drug case. He suffered bruises and lacerations all over his body. He took medicine and recovered after five days. The applicant moved to stay at various places in order to avoid them. However, he received phone calls from them. He suspected it might be due to the EMI number of his mobile phone known to the police and accessed by Rajveer’s brother who was an senior officer at the police. He continued to receive phone calls from Rajveer’s family, he came to Hong Kong in 2015.

The Director’s Decisions

5.  The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC 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 under RC”).

6.  By Notice of Decision dated 24 October 2016 (“the Director’s Decision”), the Director rejected his application for the reason that his claim was not substantiated.

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 27 June 2018. He was also legally represented.

8.  By Decision dated 7 September 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case and his legal representative’s argument and submissions. It held that “honour killing” was, according to the Country of Origin Information (“COI”) unlikely to happen. Since his wife had withdrawn her application and returned to India and she survived, it did not accept that the applicant should be treated differently. It said:

“And the Appellant has not given any evidence as to why this thesis could possibly be true.” [18]

10.  It also did not accept that Rajveer’s family would be still interested in him or have the ability or intention of finding him among the population of India [19].

11.  The Board considered each of the risks: Torture risk, BOR 3 risk, BOR 2 risk and Persecution risk and rejected each of them respectively.

12.  For Torture risk, the Board held that it was a private animosity, had nothing to do with the India government and that he had not been arrested, detained or imprisoned in India [8]. Also, internal relocation was an available option for him [14].

13.  On BOR3, the Board found that there was no evidence that the applicant had suffered severe injury or serious harm and that he would be subjected to harm in the future. Furthermore, state protection was available to the applicant [24].

14.  BOR 2 was not applicable to his case [26].

15.  On Persecution risk, the Board found that the applicant was not covered within the context of “persecution” and that state protection and internal relocation are options open to him. [28-31].

Application for leave to apply for judicial review

16.  In his Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application dated 19 September 2018, the applicant relied upon the following grounds:

1. my wife’s parents want to kill me;

2. the authorities in my country will not protect me; and

3. relocation is not possible as I am not safe.

DISCUSSION

The Board’s Decision

18.  The applicant appeared before me. He confirmed that he had no complaint against the Immigration officer or the Adjudicator as he was legally represented on both occasions. Their respective Decisions had been explained to him by his lawyer.

19.  This Court only plays a supervisory role in the judicial review.  The standard of review is that of “rigorous examination and anxious scrutiny” [45] Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

20.  The Court will require higher standard of fairness in the assessment of the applicant’s case. Paragraph 51 of the above judgment states:

“High standards of fairness requires the Secretary (Director) to give every opportunity to the applicant to establish his claim (the burden being solely on him); the claim being properly assessed by the Secretary and where the claim is rejected, the Secretary must give reasons sufficient for the applicant to consider taking up judicial review.”

21.  The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and 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.

22.  In the course of considering the Board’s Decision, the following procedural irregularities were observed.

23.  Under the rubric of “Basis of the claim”, the Board set out the facts as alleged by the applicant. At some places the Board raised comments of astonishment.

24.  The first one was when it considered the evidence that the applicant and his wife were first attacked by his wife’s family shortly after the wedding. They managed to escape. The family members told them not to report the matter to the police. The Board commented:

“This assertion is astonishing, because his case is that the police were “on side” with W’s family, and especially when BS [the wife’s brother] was a senior police officer, so that it would not have mattered that the attack was reported.”

25.  The second comment was when the applicant said he got a job as a taxi driver after the attack in his home in Nakodar City. The Board was astonished because his wife’s brother was the Deputy General of Police in the district and it took the view that the applicant would not dare to live and work there.

26.  The third comment was when the applicant said that he had received telephone threats from his wife’s family. The Board was told that the applicant had changed his telephone number 2 or 3 times and it was astonished how it happened.

27.  The fourth comment was why the applicant flew 3700 km all the way to Hong Kong where he said that he was attacked only once in 2014 and thereafter for almost a year, he did not encounter any physical hostility.

28.  From the Board’s Decision, it seems that the Board had not raised the astonishments with the applicant and allowed him to clarify or explain.

29.  However, the Board did not make any conclusion on those facts on which it had astonishment. It did not say that it did not believe the applicant’s stories or because of those facts it doubted, it gave no weight to all of his evidence in support of his case. On the contrary, it continued to assess the risks as if it accepted all the facts as alleged by the applicant.

30.  In Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §30, the Court of Appeal said that the Director and the Adjudicator need to find the primary fact. This Court will not be assisted if the Board did not find the primary fact itself.

31.  I consider that leave should be granted if not for the Board’s findings that state protection and internal relocation were available options to the applicant, which the applicant did not raise objection as the grounds of his application. These two options will be applicable even if the applicant is able to prove all his facts as he alleged. The Court of Appeal in the above case held:

“- if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. [32]”

32.  The applicant had been a taxi drive in other areas in India and there was nothing happened there. I have asked the applicant why those options were not effective for his safety if he returned to India. He said that he would be easily located because his wife’s brother was a high official in the police, which I find it hard to accept as he was only the official of a police station at a district in India, which is a big country of a population of over 1.3 billion. He was unable to give any other explanation.

33.  The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.

CONCLUSION

34.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

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