KPS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 62/2016

[2018] HKCFI 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 62 OF 2016

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J U D G M E N T

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I.  INTRODUCTION

1.  This is an application for leave to apply for judicial review pursuant to Form 86 filed on 16 March 2016 (“Form 86”) subsequently amended on 22 August 2016 (“Amended Form 86”) against the following decisions:

(a)     the decision of the Director of Immigration (“DOI”) made on 22 December 2014 refusing the application by the applicant (“KPS”) for non-refoulement protection (“DOI Decision”); and

(b)     the decision by a member of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) made on 4 March 2016 dismissing KPS’ appeal/petition and confirming the DOI Decision.

II.  KPS’ CLAIM

2.  KPS claimed that if he were to be returned to India, he would be ill-treated or even killed by a moneylender MK (who was “rich and influential” and had the police on his side) and his “offsiders” for failure to repay his debt.

3.  KPS was a native of India. He was born in MP, P District, India where he received 10 years of education. He was in his 30s. He claimed it was a prevailing trend in India for people to borrow money from moneylenders at high interest rate. In May 2005, in order to start his own grocery shop in C area, KPS borrowed 100,000 Indian rupees (“INR”) from MK at high interest rate of 10% per month. MK required KPS to pay INR1,000/month as interest and to repay the entire principal within 6 months, failing which the whole outstanding sum would be immediately repayable.

4.  At first KPS’ business did not do well, but he hoped it would become better. He managed to pay interest to MK for 8 months, but since February 2006 he had no money to pay MK or to buy stock for his shop. KPS struggled to pay rent to his landlord. KPS explained the situation to MK, saying he would only repay INR500/month as interest, but MK disagreed. KPS claimed that since then MK threatened KPS with abusive language and intimidating gestures that he would close down KPS’ shop.

5.  After KPS defaulted paying interest for 3 months, MK forcibly closed down KPS’ shop and seized his keys, and told KPS he could only re-open the shop if KPS repaid the whole outstanding sum. KPS tried to get someone to talk to MK, but MK would not listen. So KPS asked an influential and respected businessman in his local area named R to talk to MK. Later, MK gave the keys back to KPS for him to re-open his shop on condition that KPS would repay all outstanding principal and interest in 10 days. KPS re-opened and operated his shop, but there was no business improvement. About 10 days later, MK again asked KPS for money, so KPS gave him about INR500. But MK said it was not enough, and he left after saying angrily he would be back to collect money from KPS. In the KPS Aff (see paragraph 32 below), KPS claimed “…… [he] could not get any help from anybody, or dare to complaint police against [MK], because [MK] is powerful, rich, and influential person, so police won’t help [him]”.

6.  Within a month (May/June 2006), MK again came to collect money, but KPS was unable to pay. MK left without saying anything. On the same night at about 9:00pm-10:00pm, when KPS was about to close the shop, MK came with 3 men. They asked KPS to close the shop. MK then seized the keys and forced KPS into a car. KPS was frightened and had no opportunity to inform his family members. KPS was taken to an unknown place in C area and kept in a room. MK and his men asked KPS to repay the whole loan, but KPS insisted he had no money. They then beat KPS with wooden sticks and iron rods, and also kicked and hacked him. KPS was disoriented and weak because he had been detained for a long time without food/drink. Before KPS lost consciousness, he heard them asking him to get money from his family members otherwise they would do something to his parents (“Parents”). KPS did not know how long he had been unconscious. When he regained consciousness, MK and his men were no longer in the room. KPS escaped and called his friend J who came and took him to his home in K area by 3 hours’ bus journey. J took KPS to the hospital, and KPS was admitted for 2 days for stitches on his head and medical treatment for injuries at his back, limbs and left eyebrow. Since then, KPS began to feel his life was in danger. In the KPS Aff (see paragraph 32 below), KPS claimed that after he escaped from detention, MK “became more furious and intended to harm every single member of [KPS’] family” as KPS had taken the loan, and MK wanted to kill him for failure to repay the loan.

7.  KPS did not report the assault to the police because MK was rich and influential. KPS claimed that if he had lodged a complaint against MK, the police would inform MK who would have taken revenge on him. KPS had such belief because someone who had complained against MK told him the police had conveyed his complaint to MK, but KPS did not know the full details of the problem between that person and MK.

8.  KPS did not seek assistance from other authorities in India regarding the incidents that had happened to him. KPS believed MK had influence over the authorities, but KPS could not specify with whom MK had connections. KPS held such belief because MK came to find him with a number of henchmen, and he had heard from other people that MK had such influence.

9.  KPS continued to stay at J’s house after his discharge from hospital. It was said it took KPS 15 days to recover fully from his injuries, and he had medical consultations during that period. J told KPS that MK had threatened the Parents and beat them up as KPS could not be found at his home (“Home”). Through J, the Parents asked KPS to leave India and not to worry about them.

10.  KPS stayed with J until he left India. Nothing eventful happened during KPS’ stay with J except J feared MK would come to his place. In March 2007, J arranged KPS’ journey and air ticket to leave India. On 30 March 2007, KPS departed India via C airport. KPS passed through Indian immigration control with his passport,[1] and nothing eventful happened. KPS’ passport contained a Singaporean multiple-journey visa issued in March 2007 as J arranged for KPS to go to Singapore instead of returning to India if he were refused entry in Bangkok or in Hong Kong. KPS transited Bangkok for Hong Kong. KPS did not seek protection while he was in Bangkok because he was only in transit.

11.  When KPS arrived in Hong Kong in March 2007, KPS did not seek protection immediately. He was permitted to remain as a visitor for 14 days. But since 14 April 2007 KPS overstayed.

12.  In/about September 2007, J informed KPS via long distance call that MK had come to the Home to look for him. Thereafter, KPS could no longer contact J who had changed his telephone number. KPS claimed he had no contact with the Parents as they did not have telephone access/ connection at their Home.

13.  KPS did not know the situation in India, and the outstanding amount he had to repay MK. KPS thought his deposit of INR100,000 must have been forfeited, and the goods inside the shop must have been seized by the landlord or MK. Thus, KPS’ business was a total loss, and he could not return to India since he had no money to repay MK.

14.  On 2 December 2007, KPS was arrested by the police for overstaying. On 4 December 2007, KPS was transferred to the Castle Peak Bay Immigration Centre.

III.  PROCEDURAL HISTORY

15.  KPS by written representation dated 13 December 2007 made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Convention”) that he would be subjected to torture in India if he were to be returned there. KPS said he only lodged a claim after he was arrested as he did not know how to make a claim when he first arrived in Hong Kong. On 19 December 2007, KPS was released on recognisance.

16.  KPS completed his torture claim form (“TCF”) on 25 January 2014, and submitted the TCF together with (a) tenancy agreement of the shop he operated in India, and (b) membership card of “Time Trade Club”. Upon the commencement of the unified screening system (“USM”) on 3 March 2014, KPS’ claim was taken to be a non-refoulement claim, and was assessed under the USM then in place. KPS submitted his supplemental claim form was dated 1 August 2014 (“SCF”), and his screening interview by the DOI took place on 27 November 2014 (“Interview”). At the Interview, KPS had no further document to submit.

17.  KPS’ non-refoulement claim was considered on all applicable grounds under the USM then in place including:

(a) risk of torture under Part VIIC of the Immigration Ordinance Cap 115 (“IO”) (“Torture Risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 (“BOR3”) of the Hong Kong Bill of Rights (“BOR”) and section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”) (“BOR3 Risk”); and

(c) risk of persecution with reference the non-refoulement principle contained in article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

18.  When KPS’ application was dealt with by the DOI, he was legally represented by the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 22 December 2014, the DOI rejected KPS’ claim. On 5 January 2015, KPS appealed/petitioned against the DOI Decision. The appeal/petition was dealt with by the Adjudicator by way of oral hearing on 18 May 2015 (“Hearing”). KPS was legally represented by the DLS. He gave oral evidence at the Hearing, and was questioned by the Adjudicator and the DOI’s legal representative. By the Adjudicator Decision dated 4 March 2016, the Adjudicator dismissed the appeal/petition, and confirmed the DOI Decision.

IV.  BASIS FOR KPS’ NON-REFOULEMENT CLAIM

19.  KPS claimed he was at risk because he would be ill-treated or even killed by MK and his men if he were returned to India for his failure to repay the debt due to MK.

V.  FINDINGS BY THE DOI

20.  The DOI considered there were no substantial reasons to believe KPS would be in danger of being harmed by MK and his men upon his return to India:

(a) KPS alleged he was detained/assaulted by MK and his men only once in an unknown place in C area, but he was able to escape on his own, to telephone his friend J, and to take a 3-hour bus journey to K with J. KPS claimed he was admitted to a hospital for medical treatment for his injured head, back, limbs and eyebrow, and was discharged after 2 days. Bearing in mind the frequency of claimed past ill-treatment from MK and his men, the mode of the attack and the extent of his injuries, the DOI did not accept the ill-treatment, whether physical or mental, inflicted upon KPS attained a minimum level of severity. Even if the alleged attack did happen, since it was said that MK and his men had left by the time when KPS regained consciousness, it would only have indicated that MK and his men wanted to teach KPS a lesson for his failure to repay the debt rather than to seriously harm him. After all, MK and his men had ample opportunity to kill/harm KPS if they intended to do so.

(b) KPS did not seek protection from the Indian police/authorities regarding the incidents that happened to him as he thought MK had influence over the Indian police/authorities even though he could not say MK had connections with whom. KPS claimed to have such belief only because someone claiming to have made a complaint to MK told him the police afterwards told MK about the complaint. Further, KPS had never been arrested, detained or imprisoned in India, and there was no suggestion that he personally encountered any difficulties with the Indian police/authorities.

(c) The DOI had considered KPS’ assertions in the context of country of origin information (“COI”) that corroborated with such assertions (summarised in paragraph 14 of the DOI Decision), but there was objective COI that suggested there were alternative avenues to seek justice in India (summarised on paragraph 15 of the DOI Decision).

(d) The DOI considered it was out of KPS’ own volition that he did not seek protection from the Indian police/authorities regarding the incidents that happened to him, and because of this the government did not take follow-up action. In the Interview, KPS claimed when he was in India he did not know there were channels for lodging complaint against the Indian police force, but he accepted there might be such channels. When KPS was told at the Interview that the Indian government had designated some vigilance officers who served as ombudsmen with authority to investigate allegations of corruption and poor administration, KPS replied he only heard about this from others after he came to Hong Kong and read the news.

(e) Further, according to COI cited in the DOI Decision, the Indian constitution conferred power on the states to legislate on matters relating to moneylending and moneylenders, and most states had enacted laws in this regard, many of which were comprehensive legislation on the regulation/supervision of moneylending business that was aimed to protect borrowers from malpractices by moneylenders. Further, the Tamil Nadu Money-Lenders Act 1957 and the Tamil Nadu Money-Lenders (Amendment) Act 1982 regulated interest/charges allowed to moneylenders. Section 13 of the 1957 Act also imposed penalty for molestation of debtor. At the Interview, KPS acknowledged there were rules/regulations but claimed he was not literate enough to read and understand fully. The DOI was of the view all these indicated there was law in India to protect KPS from being harmed by MK and his men regarding KPS’ problem.

(f) The DOI also considered internal relocation alternatives were available/reasonable, which further lowered/negated the perceived risk. When asked at the Interview whether he could relocate to places other than his home village, such as other districts in Tamil Nadu (ie Thirunelveli[2]) or other states in India (ie Andhra Pradesh, Karnataka or Puducherry[3]) to avoid his enemies, KPS replied that MK had connections with the police and would be able to locate him in India, so it was not possible for him to hide in other parts of the country. But the DOI considered KPS only encountered problems in C and K areas, so there were many viable alternatives to relocate to other districts in Tamil Nadu or other states in India with viable employment opportunities that would allow KPS to earn a living there. The DOI considered that it was not unreasonable for KPS being an able-bodied person in his 30s with 10 years’ education to relocate to other areas in India where the influence of his enemies were of lesser significance. Further, the DOI noted internal relocation was permissible under Indian law.[4]

21.  For the above reasons, the DOI did not accept KPS would face genuine and substantial risk of being subjected to ill-treatment under BOR3 from his enemies in his local area upon his return to India, and did not accept KPS warranted non-refoulement protection on the ground of BOR3 Risk.

22.  The DOI also considered that KPS’ feared ill-treatment did not fall within the definition of “persecution” as his fear originated from the money dispute between him and his moneylender. For the reasons set out above, the DOI assessed the risk of ill-treatment to be small, and did not accept KPS’ fear to be well-founded. Thus, the DOI assessed KPS did not warrant non-refoulement protection on the grounds of Persecution Risk.

23.  Again, for all of the above reasons, the DOI considered the claimed risk of ill-treatment (which KPS alleged to be torture) to be small, and he did not accept there were substantial grounds for believing KPS would be subjected to torture by MK and his men upon his return to India. In particular, it was noted no severe pain or suffering within the definition of “torture” under section 37U(1) of the IO had ever been inflicted upon KPS in the past, which was indicative of small (if any) future risk of “torture” as defined. But even if it were accepted the alleged attack on KPS by MK and his men did happen, the DOI found there was insufficient evidence to support the contention that KPS’ moneylender MK and his men (who were involved in the attack) were acting in official capacity or that the attack was at the instigation of or with the consent or acquiescence of government officials. Further, KPS had never been accused, charged, interrogated, arrested, detained or imprisoned in India, and he was able to depart freely from India without problem, so the DOI considered these matters were indicative that the Indian government did not have any adverse interest in KPS, which might render him a subject of torture under section 37U(1) of the IO. Hence, the DOI rejected KPS’ non-refoulement claim under Torture Risk.

VI.  FINDINGS BY THE ADJUDICATOR

24.  As referred to above, the Adjudicator conducted the oral Hearing, and KPS gave evidence.

25.  As regards Torture Risk, the Adjudicator took the view that KPS failed to satisfy the elements of “State agent” and “severe pain and suffering”, and that internal relocation was possible, so KPS’ claim under Torture Risk failed:

(a) “State agent” – The Adjudicator found KPS’ case was about a private debt and use of violent means to apply pressure for repayment, but there was no evidence of instigation or authorisation of any act by the Indian government qua the capacity of the state nor was there any harm or any threat of harm done/uttered under the colour of state authority or in the ostensible exercise of a public authority. The assault on KPS was not reported to the police or any government authority, and there was no evidence of official acquiescence by the Indian government. KPS had not said he relied on the extended concept of state acquiescence, but in any event there was no evidence of any failure of due diligence by the Indian government or how such failure would subject him to the risk of torture, CIDTP or persecution by the Indian government or any official authority of such state.

The TCF/SCF showed KPS, his family and close friends had not been arrested, detained or imprisoned in India, and the Interview showed KPS could depart India via proper immigration channels without any problem from the national government or from any official. The Adjudicator accepted these features were not decisive, but they did not suggest KPS was targeted for torture by the national government.

In the circumstances, the Adjudicator concluded the element of “State agent” for Torture Risk and substantial existence of such risk in future were not established.

(b) “Severe pain and suffering” – The Adjudicator noted the alleged loss of consciousness might sound serious, but there was no evidence KPS received any major medical/surgical treatment. Mere fainting or suturing did not mean severe injury. But even if there was loss of consciousness due to concussion which might be more serious injury, it did not require neurosurgery. KPS was also able to escape from the room himself, to telephone his friend J, and to travel by bus for 3 hours without further medical trouble. In any event, there was no medical evidence from the treating doctor showing injuries amounting to severe pain and physical/mental suffering that satisfied the relevant element for Torture Risk.

The Adjudicator accepted no evidence showing any physical/ mental pain or suffering in the past did not necessarily mean there would be no torture in future, but he found the evidence before him did not establish substantial grounds to show any foreseeable and real risk. Anyway, the assaults on KPS would not constitute torture unless inflicted by a “State agent” or by someone acting in the official capacity of the State. Neither MK nor any of his henchmen was a State agent or acting in the capacity of a State agent.

(c) “Internal relocation” – The Adjudicator noted the DOI Decision discussed various COI with explanation in some detail why the DOI concluded KPS could return to India (at least to places other than his home village or C area) and be safe. The Adjudicator agreed with the analysis in the DOI Decision which was based on independent sources and facts.

The Adjudicator also summarised the relevant COI that he had considered, and set out the implications of such COI in paragraph 17 of the Adjudicator Decision. At the Hearing, the Adjudicator put such COI and their implications to KPS for his comments, but KPS said he did not know about making complaints to the police (because he had never gone to any police station before) or any of the avenues of making complaints against the police. The Adjudicator found although KPS claimed he would not get any police protection and he never made any report against MK because he had heard from others that the police sided with MK such that complaints would be useless, there was no evidence to support KPS’ suggestion that he would not be able to secure help from the Indian police. The Adjudicator noted corruption existed in almost every country, and there would be illegal activities the police would never be able to completely stamp out, but it did not mean there was no reasonable protection for Indian citizens or KPS would be at personal risk of torture, CIDTP or persecution.

As for relocation, KPS said it would be difficult to relocate as he had no family/relatives/home outside his locality, but agreed there was no substantial risk of MK finding him outside of C area and his home village. In light of the COI, the Adjudicator did not accept MK and his henchmen would be able to locate KPS wherever he might be living in India in order to locate and harm/kill him. KPS had lived in K area for 9 months and no harm came to him. At the Hearing, KPS gave evidence he did not know what happened to MK or to the situation in C area or his home village because he had left for 8 years. The Adjudicator found there would be places in India other than C area and KPS’ home village where KPS could relocate with undue hardship.

26.  As regards BOR3 Risk, whilst KPS spoke of injuries, the Adjudicator found there was no medical evidence showing severe injury or serious harm that would place him within the criteria of CIDTP. For the reasons he referred to (as described above), the Adjudicator found no substantial ground to believe KPS would face future risk of serious harm. Further, the COI showed reasonable availability of state protection from such harm. The Adjudicator therefore concluded the situation fell short of establishing CIDTP. In any event, the Adjudicator found KPS could safely reside in India other than in C area or his home village. Thus, the claim based on BOR3 Risk failed.

27.  As regards Persecution Risk, the Adjudicator noted there was no medical evidence of severe injury or serious harm which would place KPS (even though he spoke of injuries) within the criteria for Persecution Risk. For the reasons he gave (as described above), the Adjudicator found no substantial ground to believe KPS would face a future risk of serious harm, and the COI suggested there would be reasonable availability of state protection from such harm if any. The Adjudicator also noted the alleged assault on KPS (and any future risk thereof) had not been and would not be launched on account of his race, religion, nationality, membership of a particular social group or political opinion. Further, MK and his henchmen did not come within the meaning of “populace”, which term does not mean merely one or a handful of individuals who threaten or assault a claimant. In any event, the Adjudicator considered KPS could relocate internally in India (at least to places other than C area or his home village). Thus, KPS’ claim based on Persecution Risk also failed.

28.  The Adjudicator stated he had considered KPS’ notice of appeal/petition which essentially criticised the DOI for not giving him the opportunity to comment on the COI before “processing the application by ambush”, and claimed India had a “systemic practice of torture or CIDTP rendered to refugees or returnees or people in custody”. KPS’ duty lawyer also addressed on various issues (including internal relocation and corruption in India) in his written final submissions. But the Adjudicator concluded as follows:

(a) There was opportunity for KPS to ventilate these issues at the oral Hearing, so the complaints against the DOI for breach of natural justice became irrelevant.

(b) As regards the complaint of systemic practice of torture and CIDTP, (i) no court/tribunal in the world had declared India as a nation of “gross, flagrant and massive violation of human rights”, and (ii) India was 1 of 15 countries that had sent representatives to the United Nations to assist in the implementation of the Istanbul Protocol against Torture. The Adjudicator was not persuaded that the alleged assaults by MK and his henchmen on KPS had the authorisation or acquiescence from the Indian government outside private capacity. But in any event, irrespective whether or not India had a consistent pattern of gross, flagrant and mass violations of human rights, there was no evidence that KPS was personally at risk of torture.

29.  The Adjudicator came to the above conclusions on the basis of KPS’ case.  On the issue of KPS’ credibility, the Adjudicator found KPS was not a genuine claimant, and he was unable to satisfactorily explain why he left India and came to Hong Kong when he did not encounter harm for 9 months in K area (that was away from C area and his home village), and why he chose to unlawfully overstay in Hong Kong and not raise any claim until after his arrest. The Adjudicator said KPS’ delay in making his torture claim (ie not as soon as he arrived in Bangkok or in Hong Kong but after he was arrested 8 months later) cast doubt on the veracity of his claim. The Adjudicator afforded KPS opportunity to give explanation at the oral Hearing, and KPS said “I did not know the system of raising a claim until I was arrested”. The Adjudicator did not find this convincing: if KPS had been genuinely fearful for his life, he would have approached a police officer, government official or anyone to ask for help, but this did not happen for quite a while until after his arrest. Further, at the oral Hearing, KPS said he knew it was unlawful when he decided to overstay, and he had been dishonest.  The Adjudicator held KPS was not a credible and genuine claimant, and he failed to establish his case.

30.  On the aforesaid basis, the Adjudicator dismissed KPS’ appeal/petition, and confirmed the DOI Decision.

VII.  RELIEFS SOUGHT

31.  If leave to apply for judicial review were granted, KPS would seek inter alia the following reliefs:

(a) an order of certiorari to quash the DOI and Adjudicator Decisions;

(b) an order for extension of time under Order 53 rule 4(1) of the Rules of the High Court;

(c) such further and other relief as the court may provide; and

(d) an order for costs.

32.  On 16 March 2016, KPS filed his affirmation in support of the Form 86 (“KPS Aff”).

33.  On 5 August 2016, KPS applied by summons to amend the Form 86 (“Summons”). On 8 August 2016, I granted leave for KPS to amend the Form 86 as per the draft annexed to the Summons and to file the same on/before 12 August 2016. KPS failed to file the Amended Form 86 within the prescribed time. On 16 August 2016, I granted extension of time for KPS to do so within 7 days. The Amended Form 86 was filed on 22 August 2016. KPS’ application for leave to apply for judicial review came before me for hearing on 9 September 2016. KPS was self-represented at the hearing.

VIII.  LEGAL PRINCIPLES

34.  Judicial review is not a further/alternative appeal procedure.  In the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabaker,[5] and (c) whether the substantive decision satisfied the enhanced Wednesbury test.In a leave application, the applicant must show his/her intended grounds in support of the intended judicial review are reasonably arguable with a realistic prospect of success.[6]

IX.  INTENDED GROUNDS OF REVIEW

35.  In the Amended Form 86, KPS sought leave to apply for judicial review on the following grounds:

(a) procedural impropriety in respect of the Adjudicator Decision, ie failure to seek clarification at the oral Hearing on matters requiring clarification (“Ground 1”);

(b) illegality in respect of the DOI /Adjudicator Decisions, ie error of law or misdirection in law (“Ground 2”);

(c) illegality and procedural impropriety in respect of the DOI/ Adjudicator Decisions, ie failure to make sufficient enquiry and failure to provide adequate reasons (“Ground 3”);

(d) illegality in respect of the DOI/Adjudicator Decisions, ie failure to take into account relevant considerations and taking into account irrelevant considerations (“Ground 4”); and

(e) for all the above matters, the DOI/Adjudicator Decisions were irrational as there was no or no sufficient basis to support the conclusion that KPS would face no risk of torture if returned to India (“Ground 5”).

36.  At the hearing before me, KPS reiterated he was badly attacked by MK and his men, and consequently he was scared of going back to India where he might be subjected to ill-treatment. He added that since he fled from India, it was not possible for him to obtain documentary proof of his assertions (other than those he had already submitted).

(a)  Ground 1

37.  On Ground 1, KPS referred to the Adjudicator’s findings/ conclusion discussed above. In the Amended Form 86, KPS agreed he had been asked why he did not seek protection upon arrival in Bangkok and/or in Hong Kong, and at the Interview he explained he was in transit in Bangkok and he did not know how to make such claim when he arrived in Hong Kong. KPS complained that instead of drawing his attention to matters that required explanation, clarification or elaboration, the Adjudicator adopted an attitude of putting him to strict proof of his claim, ie the Adjudicator “put to [KPS] leading questions and/or questions [the Adjudicator] ought to have already known the answers to in arriving to an assessment of the incredibility of [KPS]”, which meant the Adjudicator did not consider KPS’ claim afresh nor make his own assessment of KPS’ case.

38.  It was said it would be unfair for the Adjudicator to dismiss KPS’ notice of appeal/petition on the following basis:

(a) that KPS agreed there was no evidence to support his speculation that he would not be able to secure help from the Indian police (when the Adjudicator failed to considered the effectiveness of police support and avenues of complaint against the police referred to in the COI, and when KPS as a layman might have been too quick to concede information presented in such manner “particularly one that affirmatively considers only one side of the argument”);

(b) that there was lack of extrinsic evidence, including medical evidence, without seeking clarification from KPS; and

(c) that the Adjudicator had concerns but they were not put forward to KPS for comments, eg why KPS did not approach police or government official or anyone in Hong Kong for help, why KPS left India and came to Hong Kong in the absence of harm for 9 months when he stayed away from C area and his home village, and why he chose to overstay illegally in Hong Kong.

39.  It was said the Adjudicator made adverse speculations over KPS’ conduct (ie if he had been in genuine fear for his life he would have approached an officer and/or taken other likeminded steps) when it was not permissible to make assumptions and speculations in a non-refoulement context.

(b)  Ground 2

40.  On Ground 2, it was said the Adjudicator committed an error of law in failing to treat the appeal as a rehearing of KPS’ case (particularly in respect of his failure to have full and proper consideration of the COI), and in failing to inquire in sufficient detail the COI in assessing KPS’ claim in that he failed to assess (i) the effectiveness of the avenues for police assistance and for complaints against the police as identified in the COI, and (ii) whether or not such avenues were implemented effectively so as to meaningfully improve human rights conditions in India.

41.  Further, the Adjudicator Decision referred to analysis of the COI in the DOI Decision, so it was likely the Adjudicator merely endorsed the DOI’s assessment on an implied basis as there was no in-depth or balanced discussion/analysis of the sources concerning relevant COI in the Adjudicator Decision.

42.  KPS further complained that, in considering whether or not he had sustained torture in the past and hence would have a real risk of torture in future, both the DOI and Adjudicator in applying the legal principles erred or misdirected themselves in law in that when considering the extended concept of state acquiescence, they both failed to answer KPS’ claim that the Indian police was corrupt and not functioning at all, and they also erred in focusing on whether KPS pursued his complaint with the police and/or sought help from other authorities in India.

43.  KPS also claimed the DOI and Adjudicator erred or misdirected themselves in law as to the meaning of “severe physical or mental suffering”. The Adjudicator did not explain why loss of consciousness did not attain the minimum level of severity, and he merely focused on loss of consciousness as opposed to stitches for head injury and medical treatment for back, limbs and left eyebrow. It was said the Adjudicator continued to minimise the severity of KPS’ loss of consciousness by comparing it to neurosurgery for, say, evacuating a blood clot in the skull. Neither the DOI nor Adjudicator explained why the beating KPS experienced during the assault coupled with multiple threats to his life failed to attain the necessary level of severity, and why constant death threats could not meet the necessary threshold for mental suffering.

(c)  Ground 3

44.  On Ground 3, it was said that the Adjudicator failed to make his own independent assessment of the relevant COI, and failed to give adequate reasons for his apparent agreement with the DOI’s assessment of the relevant COI. It was also said the Adjudicator’s reasoning that he agreed with the DOI Decision was inadequate.

45.  As for the DOI Decision, the DOI referred to the Country of Origin Report – India published by the Home Office of UK Border Agency on 20 March 2012 (“UK Report 2012”) and other materials to reach the conclusion that reasonable state protection would be available to KPS if he were returned to India. But the DOI did not assess the effectiveness of the mechanisms of a functioning judiciary and legal aid system mentioned in paragraphs 12.1, 12.12 and 12.23 of the UK Report 2012 or whether such authorities had been subjected to criticism for susceptibility to corruption, which was the point made in paragraph 7.04 of the UK Report 2012 referred to in paragraph 14(ii) of the DOI Decision. KPS also referred to paragraph 12.13 of the UK Report 2012, which referred to Transparency International’s Global Corruption Report 2007 and which in turn commented that corruption in the Indian judiciary was increasingly apparent. Further, although the DOI referred to paragraph 9.52 of the UK Report 2012 to outline the fact that complainants could directly sue the police officers for harm caused to them by the police, the report continued to state the potential for police intimidation or harassment of individuals complaining of abuse was high because registration of the first information report might require a visit to the very station where the abuse occurred or interaction with the offending officer, and police motivated to cover up an abuse could refuse to register a first information report or inaccurately record the first information report and witness statements. The UK Report 2012 also stated bribes were typically paid to speed procedures such as police protection, and corruption in the police force was pervasive.

46.  KPS suggested the above demonstrated that the DOI only made reference to small parts of the UK Report 2012 to jump to the conclusion that state protection would be available if he was returned to India. KPS reiterated the matters discussed above, and claimed that in the circumstances he could not see how the DOI could come to the conclusion that the Indian authorities were willing and able to offer sufficient protection and legal rights to the citizens. He further complained that the DOI did not give any reasons for rejecting or discounting the above observations. KPS claimed the DOI did not demonstrate awareness of the above contrary views and/or he had taken them into account. Although the DOI listed some COI that supported KPS’ case and then listed some COI to conclude there were alternate avenues to seek justice in India, the DOI failed to explain why he preferred the latter materials over the former, and he did not provide any reasons for rejecting or discounting the COI that supported KPS’ case. It was said such failure to make sufficient inquiry into the relevant COI was fatal to the validity of the DOI Decision. KPS claimed that having erred as aforesaid, the DOI’s conclusion on the issue of internal relocation was also erroneous. Thus, the DOI and Adjudicator Decisions were both procedurally improper and hence unlawful.

(d)  Ground 4

47.  On Ground 4, KPS claimed the Adjudicator failed to take into account and give proper weight to relevant considerations/materials as explained in Grounds 1-3. As for the DOI Decision, KPS referred to the matters for Grounds 2-3. Further, KPS noted the DOI also criticised his credibility on the ground that he had encountered no problem upon attempting to leave India via immigration checkpoint, nor had he been arrested, detained or otherwise imprisoned in India, but KPS claimed this was irrelevant given there were alternate reasons as to why he was permitted to leave India, eg the national and/or local authorities did not consider him to be a flight risk and as a result was not on alert as to his departure. On the aforesaid basis, it was said the DOI and Adjudicator Decisions were illegal and hence unlawful.

(e)  Other grounds

48.  In the KPS Aff, KPS added further intended grounds of review against the DOI/Adjudicator Decisions as follows:

(a) error or misdirection in law – failure to apply or properly apply paragraph 2 of United Nations General Comment No 2 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by States Parties” concerning the obligation of a signatory state to adopt means of redress aimed at ensuring the safety of its citizenry which were effective in any event;

(b) error or misdirection in law – failure to consider the psychological impact of the facts raised as part of KPS’ claim including the injuries and abusive language which he was subjected to; and

(c) unreasonableness – KPS was attacked and tortured following which he received serious injuries and hospitalised treatment, so the DOI’s assessment was premised on false logic regarding the intention of KPS’ kidnappers and assailants.

X.  DISCUSSION

49.  In my view, Ground 1 had no merit. This ground criticised the Adjudicator for failing to seek clarification at the oral Hearing on matters that allegedly required clarification, eg why KPS did not seek protection upon arrival in Bangkok and/or in Hong Kong, and only lodged his non-refoulement claim after he overstayed in Hong Kong and was arrested by the police. This ground also criticised the Adjudicator for speculating that if KPS was in genuine fear of his life he would have approached an officer or taken other likeminded steps.

50.  Although it was said the exercise for determining a non-refoulement claim was a “joint endeavor”,[7] which recognised that an applicant might be disadvantaged in presenting information / materials he might need to establish his claim or the decision-maker might need to process it,[8] there would be limits to what high standards of fairness would require of the decision-maker. The Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. But like the applicant in TK v Jenkins & anor,[9] KPS was represented and assisted by the DLS. In TK v Jenkins & anor, Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”.[10] High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the decision-maker to disprove it.[11] “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim. Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [decision-maker] to process it” (my emphasis).[12] If the applicant and his legal representatives had not seen fit to obtain and supply such information to the decision-maker, high standards of fairness would not require the decision-maker to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.[13]

51.  McWalters J (as he then was) in AM v Director of Immigration & anor[14] reiterated the separate roles played by the applicant and the decision-maker in the “joint endeavour”. The claim is that of the applicant who bears the ultimate responsibility for it throughout the processing of it. The burden of proof always remains on the applicant being the person claiming protection from refoulement.[15] On the other hand, the decision- maker has a reactive role, which is “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [decision-maker’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.[16]

52.  As to how the above principles should be applied would depend ultimately on the facts and circumstances of each case. But, in short, whilst it is true that the law requires the Adjudicator to act fairly and with commonsense in relation to information required by an applicant to prove his case, KPS cannot simply sit back to require the Adjudicator to disprove his case.

53.  KPS (and no doubt his legal representative as well) was aware that the Interview was the principal forum/opportunity to clarify his case and to address points of contention, and that he should include all information/ documents he wished the DOI to consider. But as KPS acknowledged, opportunity had already been given to him at the Interview to explain the matters in paragraph 49 above. By the Notice of Appeal/Petition filed by KPS, he was notified to include all information he wished the Board/ Adjudicator to consider and to set out all grounds of his appeal/petition. KPS signed the declaration in the Notice of Appeal/Petition that he believed the information he supplied was complete, correct and up to date in every detail. KPS must have known he could have raised relevant issues/explanations or submitted further documents, and if he had any difficulty he (or his legal representative) could have made enquiries with the Board. Further, the matters of complaint under Ground 1 had been canvassed by the DOI in the DOI Decision, so KPS and/or his legal representative for the second-tier appeal/petition must have known of their significance to KPS’ claim (and how they were treated in the DOI Decision), and whether they were subjects KPS would wish/need to deal with at the Hearing and when he gave evidence.

54.  As for the Hearing, KPS was legally represented, and had been afforded opportunity to present his case as he wished, to provide any documentary support, and to address matters of concern, which evidence had been considered by the Adjudicator. As noted in paragraph 39 of the Adjudicator Decision, matters of concern under Ground 1 were asked of KPS, and the Adjudicator took note of his answer that he did not know the system of raising claim until he was arrested.

55.  As regards KPS’ criticism of the Adjudicator’s attitude in putting KPS to strict proof by putting “leading questions” to him or questions which the Adjudicator already knew the answer to discredit KPS, KPS did not refer to any specific examples to support his bare assertion. In my view, it was only fair for the Adjudicator to put matters that on their face gave concern to KPS so as to afford him opportunity to clarify and/or explain. Further, the Adjudicator had access to the TCF, SCF and Interview, so he must have known some of KPS’ responses to certain questions that the DOI put to him. But I cannot see how it could be said to be procedurally improper/ unfair if KPS was afforded opportunity at the Hearing to clarify matters of concern. Further, given KPS’ confirmation at the hearing before me that he was unable to obtain any further documentary proof in support of his assertions, it was not unfair for the Adjudicator to note there was lack of extrinsic evidence other than the documents submitted.

56.  More importantly, the Adjudicator did not rest his primary decision on lack of credibility. In fact, he rested his primary decision independently of any lack of credibility (see paragraph 29 above). That being the case, his observations on the issue of credibility in relation to KPS not making prompt application for non-refoulement protection upon arrival in Bangkok and/or in Hong Kong was neither here nor there. Ground 1 also touched on matters in relation to the Adjudicator’s treatment of the COI, which I shall deal with below.

57.  As regards Ground 2, KPS complained that the DOI and Adjudicator erred in not accepting he suffered severe physical or mental suffering when he not only lost consciousness but also suffered head injury that required suturing and also injury to back, limbs and eyebrow that required hospitalised treatment as a result of beating/assault as well as multiple death threats. It is useful to consider this ground together with KPS’ further complaint in the KPS Aff that the DOI/Adjudicator failed to consider the psychological harm that befell KPS as a result of the facts stipulated in his claim.

58.  Pain or suffering in the definition of torture can be physical or mental. Whilst it may be reasonable to expect mental impact on a person who experienced life threat, the degree of mental impact varies between different persons. In paragraph 33 of the DOI Decision, the DOI expressly referred to the “torture” definition under section 37U(1) of the IO (which included mental suffering), and in paragraphs 26-27 of the DOI Decision he expressly referred to the BOR3 Risk which concerned “ill-treatment (physical and/or mental suffering)”. The Adjudicator also expressly referred to the “torture” definition and BOR3 Risk in paragraphs 6 and 22-24 of the Adjudicator Decision.

59.  Plainly, the DOI was alive to the issue of mental suffering, but did not specifically address it because this was not KPS’ case before the present judicial review, nor has KPS produced any medical evidence to support a case of mental pain/suffering despite the fact he was legally represented before the DOI. Notwithstanding the high standards of fairness, an applicant bears the initial burden of proof. It is incumbent upon him to put in information and submissions on which he intends to rely to prove his case.[17]

60.  The DOI was clearly alive to KPS’ claim to have fear from death threats. He had taken into account KPS’ complaint of assault by MK and his men (only once when he was brought to an unknown place in C area), and noted MK and his men had left by the time KPS regained consciousness. But even on KPS’ case he was able to escape on his own after the alleged assault, to telephone his friend J, and to take a 3-hour bus journey before receiving any medical treatment, and he was discharged after 2 days of hospitalisation after some suturing. In my view, there was sufficient evidential basis for the DOI to find that KPS’ injuries were not severe, and that (if the attack on him did happen) MK and his men merely wanted to teach him a lesson rather than to kill him as he feared (as MK and his men did not use the opportunity, especially when KPS was unconscious, to kill or harm him despite alleged death threats). Having considered the above matters, and bearing in mind the relevant “ill-treatment (physical and/or mental suffering)” generally had to involve “actual bodily injury or intense physical or mental suffering”, the DOI was not satisfied KPS’ condition reached that threshold. I see no error or misdirection of law.

61.  As for the Adjudicator, it was incorrect to say he merely focused on KPS’ loss of consciousness. He also took into account other factors, eg KPS’ ability to escape from the room where he was kept, to telephone his friend J, and to travel for 3 hours without medical complications. In my view, taking into account the totality of the evidence before him, it was open to the Adjudicator to conclude that KPS had not suffered serious injury.

62.  KPS complained under Grounds 2-3 that the DOI and Adjudicator in considering the extended concept of state acquiescence failed to deal with his claim that the Indian police was corrupt and not functioning at all, erred in focusing on whether he complained to the police and/or sought help from other authorities in India, cherry-picked materials from the UK Report 2012 that were adverse to him, failed to fully/properly consider and to sufficiently inquire into the COI to assess the effectiveness of avenues for police assistance or for complaints against the police in India and to assess whether such avenues were implemented effectively, which matters according to KPS reflected that the Adjudicator only endorsed the DOI’s assessment without treating the appeal as a re-hearing of KPS’ case.

63.  In Prabakar, Li CJ commented on what high standards of fairness require in relation to torture claims:

“…… (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”[18]

64.  What will satisfy the requirement of high standards of fairness would inevitably vary from case to case.[19] It was said in Prabakar that it would not be appropriate for the Secretary for Security to sit back and put the applicant to strict proof, but he instead should draw the applicant’s attention to issues which obviously required clarification/elaboration and/or instances where it was readily apparent that something had gone amiss.[20] After all, the exercise for determining the claim was a “joint endeavour”, and I reiterate the explanation of this process in paragraphs 50-51 above.

65.  Here, the complaint was that the DOI should have delved more deeply by conducting independent inquiries into and critical analysis of the COI material. In my view, the extent to which the DOI had to research into COI materials depended on how KPS framed his claim. The relevant enquiry was focused on the elements of state involvement / acquiescence and the consideration of internal relocation.

66.  In AM,[21] McWalters J (as he then was) cited the opinion of the Committee against Torture[22] in relation to the scope of state acquiescence. His Lordship pointed out there could be active and passive state acquiescence. The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actor. The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor. In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor. 

67.  In the DOI Decision, the DOI was acutely aware of KPS’ alleged fear of inadequate protection from the Indian police/government although the DOI also noted it was KPS’ own volition not to report to the police or authorities the potential risk if there was any threat or harm made against him rather than he had been refused by the police or the authorities. In my view, the DOI had, amongst other matters, specifically addressed KPS’ distrust of the police, and in paragraphs 4 and 14-15 of the DOI Decision the DOI referred to “relevant [COI] relating to this claim” listed in the appendix thereto and/or took into account relevant country information. The DOI also quoted extensively from materials stated in the COI. Clearly, the DOI had considered various COI that appeared to corroborate KPS’ concerns and those showing some state protection and also improvement in the delivery of justice.

68.  As explained above, the DOI accepted there were reports that (a) Indian law enforcement agencies could be bribed and officials were perceived to be corrupt and (b) the criminal justice system in India was deficient in protecting human rights for the poor and vulnerable, but the DOI also noted there were recent reports which revealed the Indian government had taken steps to improve police discipline and also access to the courts, and further revealed other avenues to seek justice in India. In short, the DOI considered COI both against and in favour of the existence of state protection before (i) concluding that the Indian government had taken steps to improve police discipline and reduce corruption, (ii) coming to the view that there was nothing to show the Indian police/government was, is or will be unwilling or unable to exercise its power to provide reasonable protection to KPS as it would do to other citizens should KPS wished to be assisted, and (iii) declining to accept that reasonable state protection could not be readily available to KPS upon his return to India.[23] The DOI also noted from available COI there were rules and regulations in India to regulate moneylending and moneylenders, and to penalise molestation of debtors, and there were avenues for complaints against the police. On the matter of internal relocation, the DOI noted that internal relocation was permissible under Indian law, and he considered the size and population of various districts (see footnotes 2-3 above) before coming to the assessment that internal relocation was available.

69.  It was plain from KPS’ Notice of Appeal/Petition that KPS and his legal representative were well aware of the issue in relation to the COI, and KPS should have no difficulty in urging the Adjudicator to consider any particular COI or any particular aspect of cited COI if he wished. If he wanted the DOI to consider any further information or evidence for the inquiry, it was for him as part of the “joint endeavor” to request that be done.

70.  In my view, the DOI/Adjudicator demonstrated due consideration had been given to the COI. The DOI had demonstrated a sufficient degree of balance in his approach, and had given reasons for his views on available COI materials, which reasons could not be said to be inadequate. The criticisms discussed in AM on unqualified favourable conclusions despite inconsistent information[24] could not be properly raised here against the DOI.

71.  Here, not only did the Adjudicator note the DOI Decision canvassed various COI, he actually reviewed/summarised the COI that he had identified, and set out his observations on the implications of such COI in paragraph 17 of the Adjudicator Decision. The Adjudicator also put those COI and their implications to KPS and invited his comments. KPS (who was legally represented before the Adjudicator) had not shown what other COI he had provided to the Adjudicator that the Adjudicator failed to consider.

72.  KPS was legally represented when he made his non-refoulement claim under the USM, and he was in the best position to understand how he was to present his claim, and to know what materials would assist him in establishing his case. In this regard, I bear in mind the observations that had fallen from the Court of Appeal in Re MI:[25]

“42. Before leaving this appeal we wish to observe that the common complaint of CAT claimants during the judicial review process is that neither the [DOI] nor the Adjudicator properly understood the basis of the applicant’s claim or that they had failed to have regard, or sufficient regard, to country materials. Lawyers for the claimant then set out in some detail in the Form 86 the legal basis of the applicant’s claim, the legal principles applicable to it and the country materials to which the [DOI] and Adjudicator should have had, but didn’t have, regard. We find this extraordinary given that the courts have repeatedly said that the processing of the applicant’s CAT claim should be one of joint endeavour.

43. The process of joint endeavour is exactly what it says, a process in which the applicant, his legal representative and the [DOI] work together. The [DOI] should not hesitate to involve the applicant and his legal representative in assisting him to better understand the nature and basis of the claim. There is much less room for misunderstanding and complaint when the [DOI] has shown he understands clearly the basis of the applicant’s claim and has had regard to the materials on which the applicant relies.

44. We see no reason why the [DOI] should not require from the applicant’s legal representative, if he has one, a statement of the legal basis of the applicant’s claim, how the requirements of the CAT are met and, where relevant, the country materials on which the applicant relies.  Where the applicant’s claim is based on the extended concept of State acquiescence, the lawyer could be required to explain how it is said there has been a failure of due diligence by the State and how such a failure would subject the applicant to the risk of torture. These comments are just as applicable to the petition stage of the proceedings should the applicant be legally represented at that stage.”

73.  Further, I find KPS’ complaint that the DOI cherry-picked materials from UK Report 2012 that were adverse to KPS’ case unjustified. First, judging from the summary of the COI cited in paragraph 14 of the DOI Decision[26] the DOI must have been aware of certain unsatisfactory aspects as to the state of affairs in India. Secondly, most of the UK Report 2012 that KPS referred to for Ground 2 was, for the purpose of determining KPS’ case, not much more than confirmation of the aforesaid general state of affairs. Thirdly, it was not suggested the situation in India was so bad that effectively the whole population should be regarded as justifying non-refoulement status, which meant the relevant test was whether KPS’ risk of harm must be “personal and present” as explained in TK v Jenkins & anor at p 538 (see paragraphs 75-76 below). Here, any risk of harm against KPS had to be related to his being a debtor to MK, which was a private matter between him and MK, and that risk had to be considered in the context of the DOI’s conclusion that the alleged ill-treatment was not severe, and the opportunity of relocation to other parts of India. Fourthly, it did not necessarily follow from DOI’s lack of express reference to parts of the UK Report 2012 now relied upon by KPS that the DOI misunderstood the COI or he was biased. Have considered the analysis of the COI in the DOI Decision, I find the DOI had demonstrated a sufficient degree of balance in his approach. Hence, the criticism in AM of cherry-picking unqualified favourable conclusions despite inconsistent information could not be levied against the DOI.[27]

74.  KPS also criticised the Adjudicator for failing to conduct independent inquiry as regards COI. He had not given any example of what he thought the Adjudicator should have further inquired into. As explained in TK v Jenkins & anor, the applicant cannot sit back, and a balanced view has to be taken as regards the notion of “procedural fairness”. As pointed out in paragraph 71 above, the Adjudicator summarised the relevant COI that he had considered and set out such COI and their implications in paragraph 17 of the Adjudicator Decision. At the Hearing, the Adjudicator put such COI and their implications to KPS for his comments. The COI was obviously considered together with and in light of KPS’ case and/or the findings made in relation to those matters. I cannot see how it could be said the Adjudicator failed to conduct independent inquiry as to the COI.

75.  In my view, the extended concept of state acquiescence was live in the minds of the DOI and Adjudicator, and I am not persuaded by the criticism against them in relation to their analysis of the extended concept of state acquiescence. More importantly, the principle of extended state acquiescence in no way lessens the importance of demonstrating the applicant personally be at risk. For the purpose of making their determinations, the DOI and Adjudicator found against KPS that he was personally at risk of torture, cruel and inhuman treatment, so there was no duty on them to go further to consider and assess whether state protection existed in India under the extended meaning or whether any “reforms and avenues of redress” by the Indian government were effective. I find the challenge by KPS under Grounds 2-3 untenable.

76.  It is also settled that the existence of a pattern of violations of human rights in a country does not by itself constitute a sufficient ground for determining that a person will be at risk of torture or CIDTP upon his return to that country. There must be additional grounds indicating the individual concerned will be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture and/or CIDTP.[28] As Au J explained in ST v Betty Kwan & ors,

“The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.”[29]

77.  The picture presented by the COI cited was not one showing the Indian government’s indifference to or inaction in respect of the unsatisfactory social conditions. Further, the fact that the Indian government’s efforts were not wholly effective did not of itself mean she was de facto permitting such problems to take place so as to facilitate and enable those perpetrating the problems to do so with impunity.

78.  As regards Ground 4, since I am against KPS’ contentions for Grounds 1-3, I also do not accept his suggestion that the Adjudicator failed to take into account and give proper weight to relevant considerations/ materials as he explained for Grounds 1-3. As regards the DOI Decision, I am unable to accept his reliance on Grounds 2-3. As regards KPS’ challenge against the DOI’s reliance on the fact that he did not encounter any problem in leaving India via immigration control, nor had he been arrested, detained or otherwise imprisoned in India, it was a finding open to the DOI on the evidence. No error of law was committed. There was no merit to the Ground 4.

79.  Ground 5 was a catch-all ground. In light of my conclusions on Grounds 1-4, this ground also fails. I do not consider the DOI and Adjudicator Decisions to be unreasonable in the Wednesbury sense.

80.  KPS also complained that the DOI and Adjudicator failed to properly apply paragraph 2 of General Comment No 2 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by States Parties” concerning the requirement that states parties must take action that will reinforce the prohibition against torture through legislative, administrative, judicial or other actions that must be effective in preventing it. In my view, this harked back to the above discussion in paragraphs 49-56 above on the concept of extended state acquiescence, and for the reasons discussed therein, I find this intended ground of review untenable.

81.  In any event, the DOI assessed the risk of harm to KPS if he returned to India to be low. Likewise, the Adjudicator was not persuaded that KPS would face any risk of ill-treatment at the hands of MK and his men or at all were he to be refouled and relocated in India. By reason of the above, the DOI and Adjudicator could not be faulted for not finding for KPS in relation to any psychiatric harm or mental suffering.

82.  As regards KPS’ suggestion that the DOI and Adjudicator Decisions were unreasonable in that he was attacked and tortured following which he received serious injuries and hospitalised treatment so the DOI’s assessment regarding the intention of KPS’ kidnappers and assailants was premised on false logic, I have dealt with the matter of factual findings in paragraphs 49-50 above, and find such contention unarguable.

XI.  CONCLUSION

83.  In my view, bearing in mind the high degree of scrutiny required, neither the DOI nor the Adjudicator made any reviewable error in coming to the essential findings/conclusions in their respective decisions. I find they had respectively given sufficient reasons for coming to those findings/conclusions, which reasons were rational and sound. KPS failed to demonstrate that any of the intended grounds of review was reasonably arguable. I therefore dismiss KPS’ application for leave to judicially review the DOI and Adjudicator Decisions in respect of his non-refoulement claim with no order as to costs.