RE PAWAN KUMAR

HCAL 126/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 126 OF 2015

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J U D G M E N T

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1.  This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of the Director of Immigration (the Director) dismissing his claim for Non-refoulement and the decision of the Deputy Chairperson of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Adjudicator”) dismissing his Appeal / Petition.

BACKGROUND

2.  The Applicant is an Indian national. 

3.  On 26 November 2006, he came to Hong Kong by boat.  One month later, on 27 December 2006, he was arrested.  On 26 January 2007, he was released on recognisance.  On 14 July 2008, he was arrested again for taking illegal employment.  On 24 July 2008, he lodged his torture claim and was on 28 August 2008 released again on recognisance.

4.  His claim was considered by the Immigration Department.  By a Notice of Decision dated 27 August 2014, the Director rejected the claim. 

5.  The Applicant lodged an appeal against the decision of the Director.  There was an oral hearing on 3 March 2015.  By the Decision dated 29 June 2015, the Adjudicator refused the Applicant’s appeal.

RELIEF SOUGHT

6.  The Applicant seeks the following relief :

(1)  an Order of Certiorari to bring up and quash the said decision of the Director;

(2)  an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(3)  an oral hearing if leave is not granted on paper (and thus this hearing);

(4)  such further or other remedy, relief or orders as may be just and expedient in the circumstances.

GROUNDS OF REVIEW

7.  The Applicant appeared in person.  The following grounds of review were put forward :

(1)  Against the Director : procedural impropriety in that :

(a)  The Director failed to inform the Applicant that his application for non-refoulement would be assessed in the light of the country of origin as listed in the Notice of Decision; and

(b)  The Director cherry picked supporting country of origin information to form the basis of his assessment and / or failed to fully consider material referred to in his Decision.

(2)  Against the Adjudicator : procedural impropriety in that :

(a)  There was no or insufficient basis to conclude that the Applicant would not be subjected to torture and on CIDTP upon refoulement; and

(b)  He failed to conduct sufficient inquiry into the country of origin conditions of his home country.

8.  For the purpose of this application, the Applicant filed a written submission.  At the hearing, he informed the Court that he has contacts with his family and was told that his enemies were still around and there was continuous harassment.  His brother has been threatened many times and asked about his whereabouts.  There was also extortion of money.  He stressed that his case should be properly considered.

FACTUAL BASIS FOR THE NON-REFOULEMENT CLAIM

9.  The claim based on an alleged danger of being killed and / or persecuted and / or subjected to torture by two members of the Congress Party, Vishal and Raju, since the Applicant disobeyed their directions to steal medicine and engage in illegal drug activities.

10.  In or around mid-2001, the two men asked the Applicant to steal medicine from the store where he worked and be involved in drug trafficking.  The Applicant refused despite continuous calls from the two.  Then there was threat of his life and the Applicant was prevented from contacting the Police.

11.  The Applicant alleged that he was later attacked by the two and 3 – 4 other persons.  The Applicant was attacked with bare hands and was kicked for about 5 – 10 minutes.  It resulted in a cut at the Applicant’s right eyebrow and bruising all over his body.  The Applicant received treatment but did not report to the Police as he feared further reprisals.

12.  On or around 4 January 2003, the Applicant was attacked again by the two together with 2 – 3 persons.  He was beaten and kicked.  His jaw was dislocated and other minor injuries were sustained.

13.  Following the second attack, the Applicant reported to the police but the report was not accepted for the reason that the report was not made contemporaneously. 

14.  The Applicant maintains that the Police has been susceptible to corruption and influence from political parties to which Vishal and Faju have affiliation.

15.  The Applicant continued to receive telephone threats from the two.

16.  On 7 May 2003, he was attacked by the two for the third time, this time together with 5 – 6 men.  The Applicant was rescued by people working nearby and did not sustain serious injuries.

17.  Towards the end of 2004, the Applicant was again threatened and attacked, this time on the head resulting in hospitalisation for 2 – 3 days.  This fourth attack led the Applicant to move to live in his uncle’s house.

18.  In or around mid-2005, the Applicant was located and was attacked again by the two together with 3 – 4 other men.

19.  No report was made to the police because it was believed that no assistance and / or protection would be afforded to him.

20.  Owing to the above, the Applicant left India by air via Thailand on 2 November 2006.  Upon arrival in Hong Kong, he was permitted to stay as a visitor for 14 days.

21.  During this stay, he applied to UNHCR seeking asylum.

22.  He then left Hong Kong.  When he came back on two occasions in November 2006, he was refused entry.  He entered Hong Kong on or around 26 November 2006 illegally.

23.  His claim with UNHCR was rejected in or around March / April 2007.  On or around 24 July 2008, the Applicant lodged his non-refoulement claim.

24.  The Applicant has maintained contact with his family and was informed that the two continued to look for him and his family has been threatened to reveal his whereabouts.

DISCUSSION AND CONSIDERATION

25.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[1] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonable arguable, in other words, whether it enjoys realistic prospect of success.

26.  Against the Director, the Applicant submitted that he had completely disregarded the various Country of Origin Information (COI) reports which are supportive of the Applicant’s case, namely that the police was corrupt and could not afford adequate protection and placed undue weight on the information that there were indications of positive improvements without assessing duly the effectiveness of the reforms and improvement measures. 

27.  The Director was criticised to be cherry-picking, a practice disapproved in AM v Director of Immigration[2].

28.  Against the Adjudicator, the Applicant submitted that the Adjudicator failed to conduct sufficient independent enquiry as to the COI information.  The adjudicator was criticised to have copied and adopted almost the same paragraphs of the reports which were referred to by the Director.  It is trite law that an appeal in Non-refoulement claims is conducted as a rehearing.  The Adjudicator was under a duty to conduct his own independent inquiry and reach his own conclusion.  The Adjudicator had wrongly cherry picked from the reports in order to justify his conclusion. 

29.  Overall, it was submitted that there was no or insufficient basis to support the decisions of both the Director and the Adjudicator.  The decisions are therefore irrational.

30.  I have considered carefully the Decisions of both the Director and the Adjudicator.  I am not persuaded that the allegation of procedural irregularities as alleged by the Applicant is substantiated in the sense that there is realistic prospect of success.

31.  In the Decision of the Director, materials stated in 10 COI reports have been referred to.  The Director noted the reports on the serious problem of corruption, lack of external police complaint agency at a national level, the insufficiency of the criminal justice system in particular that it failed to protect the rights of the poor, minorities and vulnerable sections of the society.  On the other hand, the Director also noted the on-going reforms and recent indications of positive results, at the fronts of handling police who did wrong, functioning of the judiciary, provision of legal aid, as well as the establishment of ombudsman and Central Vigilance Commission.

32.  The Adjudicator had referred to some similar COI reports and some different reports.  He noted in particular the serious problem of corruption and lack of external police complaint agency at a national level. He also noted on the other hand improvements in the complaint handling mechanism, functioning of the judiciary and legal system as well as mechanism to cope with refusal of the police to register a report.

33.  Both the Director and the Adjudicator have demonstrated that due consideration had been given to the materials.  Having recognised that there are still a lot of deficiencies or unsatisfactory situation in India, the Director formed the view that there is reasonable protection to the Applicant if he returns to India.  The Adjudicator was of the view that there is reasonable state protection in India.

34.  Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration[3], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1)  whether the adjudicator committed any error of law in his decision;

(2)  whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3)  whether the substantive decision satisfied the enhanced Wednesbury [4] test.

35.  The Applicant’s claim was considered under USM and his case was considered by the Director and the Adjudicator on all of the applicable grounds :

(1)  risk of torture under Part VIIC of the Immigration Ordinance[5];

(2)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance[6]; and

(3)  risk of persecution, with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

36.  In my judgment, neither the decision of the Director nor that of the Adjudicator can be said to be unreasonable in the Wednesbury sense.

37.  The Applicant has not satisfied me that there is a ground based on which there is realistic prospect of success to apply for judicial review against the decisions of the Director and the Adjudicator.

38.  Even if I am to accept that there has been continuous contact and threat to the family with a view to locate the Applicant, it is not a matter which by assessing either its nature or degree enhances the Applicant’s case to a significant extent.

CONCLUSION

39.  The Applicant failed to demonstrate that any of his grounds of review is reasonably arguable with a realistic chance of success.  His application for leave to apply for judicial review is therefore refused.