PARDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 164/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 164 OF 2015

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J U D G M E N T

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Introduction

1.  On 24 September 2014, the Director of Immigration rejected the Applicant’s non-refoulement claim under the Unified Screening Mechanism.  The Applicant appealed/petitioned to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“The Appeal Board”) and the Adjudicator[1] refused his appeal/petition on 10 February 2015 (“the Decision”), following two hearings held on 2 and 8 January 2015. 

2.  This is the Applicant’s application for leave to apply for judicial review against the Decision.  The application was taken out on 14 August 2015 and hence, it was out of time for just short of 3 months[2].

The Applicant’s claim

3.  The Applicant’s case is rather simple.

4.  The Applicant is an Indian national.  In May 2014, his cousin named Vaishali complained to him that she was harassed by a person named Jagjeet Singh (“JS”).  JS’s uncle, Santokh Singh Chaudhary, was a member of the Congress Party in Phillaur, District Jalandhar, Punjab, who was very influential in the Applicant’s village and throughout the whole country.

5.  In May 2014, the Applicant went to see JS and asked him to stop harassing Vaishali.  JS threatened the Applicant with abusive language and told him not to get involved in the matter.  JS and his followers also slapped the Applicant’s face and hit him all over his body for 1 to 2 minutes. 

6.  The Applicant then reported JS’s assault on him to the police.  About 30 minutes after the report, the police informed the Applicant that investigation had been carried out and the result was that no such assault had taken place.  The police accused the Applicant of having lied to them.  The Applicant suspected that the police had refrained from taking action against JS because of JS’s uncle.

7.  A few days later, the Applicant and 6 friends took revenge against JS where he slapped and punched JS’s face and they hit JS and a person with him for 1 to 2 minutes.

8.  Since then JS and his followers have called at the Applicant’s home, threatening that they “would not spare him” if they caught him then on a subsequent occasion they again called at the Applicant’s home where JS dragged the Applicant out of his house and they hit the Applicant for 1 to 2 minutes with open hands.  JS threatened the Applicant and his family members that he would assault and kill the Applicant if the Applicant did not stay out of the matter concerning Vaishali.

9.  The Applicant reported the incident to the police at the same police station but the police again accused him of lying.

10.  Some days after the second report to the police, several police officers went to the Applicant’s home to arrest him in respect of a false charge of drug offence but the Applicant was not at home at the time.  The police officers told the Applicant’s family members that the Applicant should stop causing trouble to JS.

11.  To escape from the police, the Applicant first went to his cousin’s home in Phagwara City and then to Delhi the following day.  During the time the Applicant was in Delhi, the police visited the Applicant’s home again and told the Applicant’s family member that they knew he was hiding in Delhi. 

12.  The Applicant was frightened and upon his cousin’s advice he escaped to Thailand.  When he was in Thailand, the Applicant’s cousin informed him that JS was still looking for him and wanted to kill him.  The Applicant then further escaped to Macau then entered Hong Kong on 27 June 2014.  On the day of his arrival to Hong Kong, the Applicant lodged his non-refoulement claim.

13.  The Applicant claimed he fears that if he is returned to India he will be harmed or even killed by JS and his followers.

The Decision

14.  In his written decision, the Adjudicator commented that:

“the extent and nature of the assaults and the injuries inflicted were by any standards very minor, to the point of almost trivial – the sort of incidents which occur between schoolboys in a school playground anywhere in the world – and came nowhere near the intentional infliction of ‘severe pain and suffering, whether physical or mental’ stipulated in the definition of torture in the Ordinance[3].”

15.  Further, the Adjudicator viewed that:

“the [Applicant’s] allegation that JS threatened him that if he continued to involve himself in this matter which was between him and Vaishali, he would assault him again, get him arrested and ‘kill’ him appears quite unreal when viewed in the context of the very minor assaults which had preceded this alleged threat to kill”.

16.  The Adjudicator concluded that:

“[on] all the material before me it is extremely unlikely that JS or his uncle would attempt to pursue the [Applicant] if he were returned to India; and even if they did, there is no reason to believe that, at the very worst, they would inflict any more serious assaults or injuries upon him than have already been inflicted upon him in the past two assaults”.

17.  Having considered the Human Rights on India for the years 2012 and 2013, the Adjudicator also took the view that:

“there is no reason to apprehend that, if [the Applicant] were now returned to India, the police might arrest him on a false charge or charges, at the behest of JS or his uncle”.

18.  As for the present situation of Vaishali, apparently there was a difference between what was recorded in the record of interview of the Applicant and what the Applicant said at the hearing before the Adjudicator.  The difference was that it was recorded in the record of interview that the Applicant had phoned Vaishali when he was in Thailand or Macau and Vaishali had told the Applicant that she was still studying at the college and was “fine”, while the Applicant said at the hearing that Vaishali had left the college following the assault incident, and was now living somewhere outside India.

19.  The Adjudicator commented that:

“In these circumstances, on either of the above scenarios – whether Vaishali is still attending the same college in India and is ‘fine’, or has left the college and is living outside India – if the [Applicant] were now to be returned to India there is no reason to believe that there would still be any issue between JS and Vasishali, and it would be extremely unlikely that JS or his uncle would seek to harm the [Applicant], or influence the police to frame him up or otherwise harass him, and equally unlikely that the police would pursue him of their own accord.”

20.  As a result, the Adjudicator concluded that the Applicant has failed to show that there are substantial grounds for believing that he would be subjected to torture if he were now returned to India. 

21.  The Adjudicator then referred to Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 33 of the 1951 Convention and found that the Applicant had failed to establish the requirements under the relevant provisions.

The Applicant’s grounds of judicial review

22.  The Applicant has advanced 3 main grounds of review in his Amended Form 86 which are as follows:

(1)   Irrationality – Failure to consider the concept of State Acquiescence ;

(2)   Procedural Impropriety – Insufficient Inquiry; and

(3)   Failure to provide adequate reasons as to decision made.

23.  Regarding the ground on procedural impropriety, it is the Applicant’s complaint that the Adjudicator has failed to make adequate enquiries into the country conditions of India.

24.  As for the third ground of review, “the decision made” refers to the Adjudicator’s conclusion that it was extremely unlikely that JS or his uncle would attempt to pursue the Applicant; and the police might arrest him on a false charge at the behest of JS or his uncle, if the Applicant were to return to India (“the said findings”).

Discussion

25.  It would be more convenient to first deal with the third ground of review of the Applicant.  In fact, Miss Lau, counsel for the Applicant, has chosen to advance her argument in this sequence.  The obvious reason being that, should the Applicant be unsuccessful on the third ground of review, it would be academic for this court to consider the other two grounds.

26.  In AM v Director of Immigration[4], McWalter J (as he then was) had this to say[5]:

“irrespective of how poor a country’s security position may be and irrespective of the extent to which the State, by its attitude and inaction, may have contributed to this situation, the question always returns to the position of the claimant himself and whether it has been established that ‘there are substantial grounds for believing that he would be subjected to torture’ should he be returned to his country of origin.”

27.  As submitted by Mr Li, counsel for the Interested Party, the Adjudicator’s factual finding that there would not be a genuine or realistic future risk of harm (in that JS and his uncle would not pursue against the Applicant and the false charge) would mean that the issue of state acquiescence would not be engaged.

28.  Concerning the ground on procedural impropriety, the Applicant’s complaint is that the Adjudicator has not conducted sufficient inquiry into the country conditions of India nor carried out any in-depth analysis and discussion of the relevant reports on the country conditions of India.  As submitted by Mr Li, it is well established that the consistent pattern of gross, flagrant or mass violations of human rights alone does not suffice to establish a non-refoulement claim.  Additional grounds must exist to show that the person will be personally at risk[6].

29.  Hence, if the finding of the Adjudicator that it is extremely unlikely that JS or his uncle would pursue against the Applicant remains intact, even if the Adjudicator did not consider the concept of state acquiescence adequately, nor he made insufficient inquiry into the country conditions of India, the Applicant would still not be able to establish his non-refoulement claim.

30.  It is not the Applicant’s complaint that the factual findings of the Adjudicator were Wednesbury unreasonable.  The complaint is merely that the Adjudicator has given insufficient reason in coming into his factual findings.

31.  Ms Lau stressed that the Adjudicator did not doubt or reject the Applicant’s evidence concerning the false drug charges against him; nor did the Adjudicator doubt or reject the Applicant’s evidence that even when he went to Delhi the police knew he was in Delhi.  It is Ms Lau’s submission that, given the above evidence from the Applicant, the Adjudicator needed to explain more clearly how he arrived at the said findings.

32.  With respect to Ms Lau, in my view, the Adjudicator has expressed clearly how he came up with the said findings in his written decision. 

33.  It was the Adjudicator’s view that the incident stemmed from a purely private dispute between the Applicant and JS in relation to his cousin Vaishali.  The Adjudicator had the view that the extent and nature of the assaults and the injuries inflicted were by any standards very minor, to the point of being trivial.  Ms Lau submitted that it is difficult to see how the fact that the Adjudicator considered the physical assaults to be minor could affect the question of whether there might be future assault.  With respect, contrary to what Ms Lau has submitted, the degree of physical assaults did reflect, to a certain extent, on how serious the parties viewed the dispute and how persistent the parties would be to pursue on each other.

34.  More importantly, the Adjudicator had found that in view of the present situation of Vaishali, if the Applicant is now returned to India, there is no reason to believe that there would still be any issue between JS and Vashali.  And it would, therefore, be extremely unlikely that JS or his uncle would seek to harm the Applicant, or influence the police to frame him up or otherwise harass him, and equally unlikely that the police would pursue him of their own accord.

35.  In the Applicant’s evidence, the threat from JS to him was that if the Applicant continued to involve himself on behalf of Vaishali he would assault the Applicant again, get him arrested and kill him.  Thus, the cause of the hostility of JS towards the Applicant was the issue between Js and Vaishali.  The Adjudicator was perfectly entitled to conclude that as there is no longer any issue between JS and Vaishali the chance of JS keeps on pursuing the Applicant is extremely low. The Adjudicator has given the above as his reasons and I find the reasons given not only adequate but also convincing.  

36.  In the premises, I find the third ground of the Applicant in this judicial review not reasonably arguable and have no realistic prospect of success.

37.  As explained under paragraphs 25 to 29 hereinabove, the first and second grounds of the Applicant in this judicial review are also not reasonably arguable.

38.  I would just add that the minor nature of the Applicant’s alleged dispute with JS, as disclosed from his evidence, should not justify any in-depth consideration on the issue of state acquiescence and conditions of country.

39.  In any event, the Adjudicator has given sufficient consideration on the concept of state acquiescence and conditions of country under paragraph 40 of his written decision.

Delay

40.  In the light of my above findings, the Applicant’s application for extension of time to apply for judicial review shall be refused for devoid of merits.

41.  The Applicant’s application for leave is dismissed on the merits and also for the reason of delay.