CHETRY GOKUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL732/2017

[2018] HKCFI 1763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 732 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 the Applicant being absent 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 claimed to have entered Hong Kong illegally on 7 November 2015 only to be arrested on the same day.  He lodged a non-refoulement protection claim.  This claim was rejected by the Director of Immigration (“the Director”) on 29 May 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 1 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 4 October 2017 and requested an oral hearing which was set down for 22 March 2018 but the applicant was absent.  The applicant had applied for legal aid but it had been refused on 19 March 2018.

2.  On the date of the hearing 22 March 2018 there were several attempts to call the applicant’s mobile telephone number but to no avail.  The applicant had supplied a notice of change of address on 4 December 2017 and a notice of hearing dated 8 January 2018 was posted to that address notifying the applicant of the date of hearing. I was satisfied that the address was accurate therefore, I proceeded to consider the application on the papers.

3.  The basis of the applicant’s claim is that if he were to return to India he would be harmed, tortured or even killed by members of a terrorist group called the United Liberation Front of Assam (“ULFA”) because he had refused to join them.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.  The applicant was born in 1990 in Assam, graduated from high school, worked in New Delhi from 2007 to 2013 before returning home to Sonitpur, Assam.  One day in 2014 he was approached by members of the ULFA which is a banned terrorist group but they maintain a strong presence in Sonitpur.  They introduced their organisation to the applicant and asked him to join and fight for the liberation of Assam.  He declined their offer on that occasion and then on many more occasions when they met on the street.

5.  Finally, in September or October 2015 a group of ULFA members went to the applicant’s house to speak to his parents to tell them that they were unable to convince the applicant to join the ULFA.  After they left, his parents told the applicant that the ULFA gave the applicant one month to consider their demand he joins them.  This terrorist group had a history of killing people who refused to join so the applicant decided to leave Assam.  They did not report this to the police because they did not believe the police could help.

6.  The applicant went to New Delhi and stayed in a guesthouse but felt that India was unsafe so he applied for a China Visa and left India on 21 October 2015.  His parents tell him that ULFA members continue to look for him, visit his home and have told his father that they will kill him if he returns to Assam.  His father also told him that the police mistakenly believe he is a ULFA member and he is now a wanted suspected terrorist.

7.  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”).

8.  The adjudicator conducted an oral appeal hearing and treated the appeal as a rehearing.  He set out the law and key legal principles applicable to the four grounds.  He considered the applicant’s evidence and claim.  The applicant elected not to give evidence but did answer several questions the adjudicator put to him which were recorded in his decision.

9.  The adjudicator did consider Country of Origin information (“COI”) that corroborated the applicant’s submission there was corruption amongst the authorities in India but he also found COI to show that the authorities had measures in place to combat corruption and monitor the conduct of the police and government officials.  He found there were alternative avenues to seek justice in India; he concluded there was available State protection if any risk existed for the applicant.  He also found internal relocation a very viable option when the ULFA were confined to Assam.  The applicant had stayed in New Delhi for several weeks before he left without incident; COI showed city such as New Delhi, Mumbai and Kolkata held job opportunities for an able-bodied man with education and work experience.  The presence of ULFA were not noted in such cities.

10.  The adjudicator does at paragraph 23 list a number of facts which he concludes are reasons when considered together show that the applicant cannot show he faces a genuine need for non-refoulement protection in Hong Kong.  The applicant agreed with the adjudicator that according to his own evidence, the only threat to his well-being is that he is in danger if he returns to Assam.  Even then, that threat was hearsay evidence.  Hearsay evidence is not in itself inadmissible, but the weight to be attached to it is somewhat reduced unless there is other evidence to support it.  Hearsay evidence does not prove the truth of a fact.

11.  The adjudicator then went on to consider the applicant’s claim on the basis that he was telling the truth.  As far as the torture risk was concerned, the applicant had never been physically assaulted or even personally threatened by any member of the ULFA.  It is a terrorist organisation hence no government official can be said to be involved in it.  Therefore, it cannot be established that the applicant is at risk of torture within the definition of torture under section 37U(1) of the Immigration Ordinance.  His torture risk must fail.

12.  As far as the BOR 3 risk is concerned, he has never suffered any physical or mental ill-treatment from any member of the ULFA.  Ill-treatment must attain a minimum degree of severity to fall within the scope of BOR 3.  Moreover, the adjudicator found no evidence to suggest that he would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 if he returns to India.  His BOR 3 risk claim failed.

13.  The adjudicator found there was no evidence of a real risk the applicant would be arbitrarily deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2; his BOR 2 risk claim failed.

14.  Lastly, his fear of ill-treatment did not fall within the definition of persecution; it was not on account of race, religion, nationality, membership of a particular social group or political opinion.  It was not for a Refugee Convention reason but a private dispute between him and the ULFA members.  He could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The Director and adjudicator did properly analyse the material, claim and evidence before them.  The applicant’s complaints against them and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

16.  In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that were in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.

17.  In paragraph 8 of the applicant’s affirmation he complains that it was not enough to simply arrange an interpreter to assist in the appeal hearing, he needed an interpreter to interpret the appeal bundle and the Director’s skeleton.  As I have said above, there was no record of any request for the assistance of the interpreter to interpret any of those documents and if he had made such a request, I am sure such assistance would have been provided before the commencement of the hearing.  The applicant goes further and seems to blame the fact he was unable to answer the questions honestly on the lack of interpretation, he says “I could have answered all the questions with honesty and clarified my claim in order to maintain my credibility which was later found questionable due to lack of interpretation of the hearing bundle…”.  I find this a weak attempt to make excuses for his lack of credibility.  There is no merit in this ground.

18.  In fact, he did not elect to give evidence.  He only answered five questions in those five questions and answers are set out in paragraph 22 of the adjudicator’s decision.  So where he says in his affirmation at paragraph 7 that the adjudicator asked him very precise and detailed questions regarding his claim is clearly inaccurate.  In the same paragraph he describes life-threatening incidents which happened to him which were very painful, which he suppressed were oddly not part of his claim.  In fact, the affirmation could be referring to a different applicant and is actually one of several “pro forma” affirmations used by other applicants where only dates, names and countries of origin are changed.

19.  The second ground is that the bundle was served only four working days before the appeal hearing and it should have been served as soon as practicable.  The applicant submits it is unreasonable to believe that the Director could not have served it earlier.  Be that as it may, the bulk of the appeal bundle was the applicant’s past evidence, such as his interview transcripts and his non-refoulement claim form and the COI previously referred to which should not have taken the applicant by surprise.  Other than that, it would have included the Director’s written submissions.  I see no prejudice to the applicant or breach of the Immigration Ordinance.

20.  Another ground is a complaint that the applicant was unrepresented during the appeal hearing and therefore it is unreasonable to expect him to know how to complain to the adjudicator that the appeal bundle was in English and he had insufficient funds to have it translated to him.  He was not told that he could complain about the inappropriate arrangements made for the fair disposal of the appeal.  He then added that he did not dare to complain because he was afraid of bias from the adjudicator.  I find no merit in this ground when I consider he can make this application and affirmation in English and articulate such an obtuse complaint.

21.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. 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