NARINDER KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL674/2017

[2018] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 674 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong on 2 June 2014 and was permitted to remain until 4 June 2014 but overstayed from 5 June 2014.  He was arrested by the police on 11 June 2014 and then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 28 April 2016 and 20 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 15 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 25 September 2017 and requested an oral hearing; the applicant appeared in person on 8 March 2018 because his application for legal aid was refused.

2.  The basis of his claim was that if he were to return to India he would be harmed or killed by his paternal uncle Dwarka who was closely connected with the political party, Bhartiya Janta Party (“BJP”) due to a land dispute between them.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only need summarise it here.

3.  The applicant was born in 1989, is single, has 12 years of education and had then gone to work in Dubai until his grandfather became ill which meant he returned home to India.  The applicant’s father inherited farmland when the grandfather passed away that was divided between him and his brother Dwarka.  The applicant’s father had also purchased farmland in his own name adjacent to this inherited land.  He transferred this piece of land he bought into the applicant’s name; it was this land that became the subject of dispute.  It was adjacent to Dwarka’s land and became quite valuable and Dwarka unreasonably felt he should share half of it with the applicant, triggering a family dispute.

4.  Dwarka was also a farmer but also closely connected to the BJP and their member of the legislative assembly. There were two incidents in 2014, in April and May where he assaulted and threatened the applicant, accompanied by other men.  He told the applicant to transfer his land to him and when the applicant refused he was beaten.  After the second attack, the applicant’s parents insisted he leave the village and hide with a relative about an hour away and make plans to leave India for his own safety.  He left on 30 May 2014.

5.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  In this application, the applicant has proposed the respondent to be the Immigration Department and the interested party to be the Punjabi interpreter and he does not specify in respect of which judgement, order or decision he is seeking relief; he does not specify whether it is the Director’s decisions or the TCAB decision.  All he does state is that he respects the judgement order.  Such applications must be accompanied by a supporting affirmation and the applicant has filed one but it contains no grounds.  It only contains a statement that he is not satisfied with the decision and he cannot go back to India because it is not safe in India.  He requested an oral hearing of this application.

7.  The applicant was given an opportunity during the oral hearing to make submissions and give grounds to support his application; he had nothing to say nor was anything unfair about the claim/appeal proceedings.

Leave to apply for judicial review

8.  Despite the lack of grounds, I am obliged to consider with rigourous examination and anxious scrutiny the decisions made in this claim.  I have to ensure there were no errors of law, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  I have to be satisfied that the decisions satisfied the enhanced Wednesbury test.

9.  The Director considered the applicant’s evidence, the law and key legal principles as applied to the four applicable grounds.  He found that the applicant had not made out a case for non-refoulement protection on his own facts.  He had not suffered severe pain or ill treatment, be it physical or mental; not to a minimum level of severity required.  He had been unable to show a genuine and real personal risk if refouled; failed to invoke the protection of BOR 2 or BOR 3.  He had not been able to satisfy or fulfil the elements of torture within the definition of torture under section 37U(1) of the Immigration Ordinance Cap 115. His dispute with his uncle was a personal dispute and did not fall within the definition of persecution.

10.  The adjudicator also considered the applicant’s evidence, the law and key legal principles and applied it to the four applicable grounds.  He also considered the applicant’s credibility and reliability.  He gave full reasons for doubting his credibility.  He did however, also go on to consider the applicant’s claim on the basis that he did believe he was telling the truth.  Like the Director, he concluded the applicant on his own facts, was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

11.  Having considered the determinations of both decision-makers, I could see no error of law by either, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  I refuse leave to apply for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1