SK SARFARAJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL467/2017

[2018] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 467 of 2017

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 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 4 June 2014 and was permitted to remain until 18 June 2014.  He overstayed and surrendered to the police on 21 June 2014.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 28 June 2016 and 3 March 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 7 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 28 July 2017 and requested an oral hearing which was set down for 21 November 2017.  The applicant appeared in person having had his application for legal aid refused.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only need to summarise it here.

3.  The basis of his claim is that if he were refouled to India he would be harmed or killed by certain Hindu people in his village because he refused to convert to Hinduism and his family had killed a cow during a Muslim ceremony in August 2010.  The applicant was born in 1993 in West Bengal, India.  He has had 10 years of education and worked as a cook for three years.  All his family are devout Muslims and live in Kolkata, West Bengal.  During a Muslim festival in August 2010, his family sacrificed a cow during a religious ceremony.  Suddenly 30 or so Hindu neighbours arrived to try and stop them killing what they revered as a sacred animal. However, it was too late and the animal was already dead.  There were six Hindu men amongst the group who were particularly angry.  They targeted the applicant and warned him not to do it again.

4.  Days later, the applicant was attacked by a group of Hindus with water balloons which prevented him from going to the mosque that day.  In February 2011, the applicant, his brother and father were attacked by Hindus during a Hindu festival; his sibling and father required stitches.  In November 2011, those same six Hindu men from August 2010 were with 10 others approached the applicant at a bus stop and beat him for 20 minutes and demanded he convert to Hinduism.  They took out a knife to scare him and hit his eye with it.  He then ran away and received treatment for his eye injury; this injury took four months to recover and he stayed in bed.  By then he was working in a restaurant in Kolkata.

5.  When the applicant recovered in March 2012 the applicant’s mother suggested that he leave the country because those same Hindu men would target him and would kill him.  Their family were still targeted and his brother and father beaten.  The applicant worked in the restaurant and hid there to earn money to pay for the arrangements to leave India.  The applicant left India on 3 June 2014.  He never sought the assistance of the police because he believed the police would only listen to Hindus who were the majority of India’s population.  The applicant could not relocate to other parts of India because he had no resources to do so.  It was still unsafe to return home as those six Hindu men were influential in his home area and politically connected.  The applicant lost contact with all his family members when he came to Hong Kong.

6.  The adjudicator, as 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”).

7.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles for the four applicable grounds.  He set out the applicants claim and evidence as well as his consideration of it.  The adjudicator had his doubts about the credibility of the applicant’s claim and gave the applicant an opportunity to give explanations where necessary.

8.  The applicant elected to answer questions at times but would, when he was faced with contradictions or discrepancies, elect not to answer questions.  It got to the stage where the applicant told the adjudicator that he did not want to answer any more questions.  The adjudicator explained that he still had a number of issues of credibility that would remain unresolved if he chose not to answer any questions and the applicant understood.

9.  The adjudicator compared the evidence given by the applicant in various statements and records of interviews; those included his interview report in June 2014, his non-refoulement protection claim form in April 2016, his interview record in June 2016 and his notice of appeal in July 2016 as well as his oral evidence that he gave during the appeal hearing in May 2017.

10.  The adjudicator set out in detail in his decision the inconsistencies and discrepancies in the applicant’s evidence.  He tried to give the applicant an opportunity to explain the discrepancies but when the applicant clearly could not give an explanation he would choose to remain silent.  The adjudicator found the number of implausibility’s so numerous that he concluded the applicant had fabricated his evidence to support a claim.  He was not a genuine claimant and his evidence was rejected.  His claim failed on all grounds for a lack of evidence.

11.  The adjudicator then proceeded to consider his claim on the basis and assumption that his evidence was credible.  He went on to find that even on the applicant’s own facts there was no real risk of the applicant suffering any harm should he return to India.  He did consider the question of State protection and internal relocation having considered the Country of Origin (“COI”) information cited by the Director.  He concluded that there was available State protection if there was any risk and internal relocation was a viable option.

12.  With regard to a torture risk, the adjudicator did not consider there to be anything which creates a risk of severe pain being inflicted on the applicant should he be refouled to India so there are no substantial grounds for believing him to be in danger of being subjected to torture if he returned home; his torture risk claim failed.

13.  With regard to a BOR 3 risk, there is no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  The adjudicator found the applicant is not at risk of being subjected to torture or CIDTP if he returned to India; his BOR 3 risk claim failed.

14.  Even on his own facts, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

15.  Lastly, the adjudicator found he was not at real risk of persecution on account of any Refugee Convention ground nor did he have a well-founded fear of being persecuted for any of the Refugee Convention reasons; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

16.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

17.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning COI material and information.  Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator for failing to consider human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in India.  Firstly, particulars have not been given in relation to each of these grounds and complaints.  Secondly, the adjudicator has made little reference to COI material; referring only to material from the applicant.  Having found no evidence, the applicant would be personally at risk if refouled and making the specific finding the applicant was not a genuine credible claimant, there was no need for the adjudicator to consider human rights violations and State protection in Bangladesh in any depth.

18.  Grounds 6, 7 and 8 also lack particulars.  There was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously. In fact, during the oral hearing the applicant confirmed to this court that he had no complaints against the duty lawyer; he said that the lawyer did a good job.  None of the above grounds have any merit.

19.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the hearing.  During the oral hearing the applicant said to this court that he did raise this with the adjudicator but the adjudicator did nothing.  However, it then transpired that his confusion was more to do with his own memory and his inability to answer questions properly.  He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood its contents.

20.  There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator.  It is clear from the dates that the Director dealt with the BOR 2 and rejected it before the adjudicator dealt with it during the appeal.  This complaint has no merit.

21.  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 for judicial review.

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