AMANDIP SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 172/2018

[2018] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 172 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of India who arrived in Hong Kong on 28 April 2012 with permission to remain as a visitor up to 3 May 2012 when he did not depart and instead overstayed until his arrest by the police on 4 June 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his brother-in-law and his fellow supporters of the political party Akali Dal Party (“ADP”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bhaini Bangar, District Gurdaspur, Punjab, India to a Sikh family where his parents and two siblings still reside.  After leaving school he first worked as a farmer and later went to work in Oman, United Arab Emirates as an electrician and a welder before returning to his home in India in 2012.

3.  In the same year his sister married a Christian by the name of AK, a prominent member of the local ADP, against the wishes of the family as it was not acceptable for a Sikh to marry anyone of different religion.  Upon his return the applicant therefore went with some of his friends to AK’s home to demand that he divorced his sister, and when AK refused a fight broke out with AK and his brother RK beaten badly and knocked unconscious with bruises and fractures all over their bodies.

4.  A few days later when the applicant was on his way to work, he was ambushed and attacked by several members of ADP and suffered a head injury and a fractured right wrist.  After he heard that his attackers were sent by AK in revenge, he made a report to the local police but it seemed to him that no investigation had been taken.

5.  Several days later one of the applicant’s friends who had earlier participated in his attack of AK was arrested by police for drug trafficking, of which the applicant suspected was a false charge made by AK to the police in revenge, and when his friend told him that his name also appeared in the police’s want-list, the applicant fled to his aunt’s home in Kapurthala where he was advised that he should leave India for his own safety, which he did on 5 April 2012 for Hong Kong but was refused entry and was turned back to India.

6.  Upon returning to India he hid in his home, but when he heard that both AK and the police were still looking for him, he left India again on 27 April 2012 when he successfully entered Hong Kong on this occasion when he overstayed and lodged his non-refoulement claim after his arrest, and for which he later completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department after obtaining legal representation from the Duty Lawyer Service.

7.  Whilst being on recognizance in Hong Kong the applicant had been involved in two fights with other Indians whom he claimed to be ADP members sent to harm him, but for which he was later charged for the second incident and was convicted on his own plea of wounding three Indian males with intent to cause grievous bodily harm and was sentenced to 3 years’ imprisonment. 

8.  By a Notice of Decision dated 28 October 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the applicant’s case and found credibility issue with his claim in his failure to raise non-refoulement protection immediately upon his twice arrivals in Hong Kong which did not commensurate with his claimed primary purpose of coming to Hong Kong, and in any event assessed the level of risk of harm from AK or the ADP members upon his return to India as low as the dispute arose from a personal and private matter between two families, that there is no evidence that the dispute is still ongoing as his family still reside safely and without any further incidents in India, that in the absence of any official involvement that state protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread acrossa vast territory where it would not be unduly harsh for the applicant as an able-bodied adultwith work experience to move to other area away from his home district where it would be difficult if not impossible for AK or his people to locate him.

10.  By a Notice of Further Decision dated 12 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 6 November 2015, and for which he attended an oral hearing on 16 January 2018 before the Board during which he declined to give any evidence despite being explained and advised by the adjudicator for the Board that it would be unable to assess the credibility of his claim in the absence of his testimony.  On 31 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found a number of features of the account given by the applicant to the Director which are relevant to his credibility upon which the Board found necessary to seek clarification and explanation from him, but that in the absence of any oral evidence from the applicant despite having clearly been explained by the Board of the importance of his oral testimony for the assessment of his credibility and the consequences of its absence that he has not only foregone the opportunity of persuading the Board of the credibility of his account, or that even it had found his claim credible why he could not reasonably ensure his own safety by relocating elsewhere in India other than his home area,as there is nothing in the COI that on its own would indicate that the applicant personally is in need of non-refoulement protection, and concluded that he has accordingly failed to discharge his burden of establishing that if he returns to India he would be at risk of suffering any harm warranting non-refoulement protection under any applicable grounds.  

13.  On 5 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1) irrationality in that the adjudicator relied on outdated insufficient and narrow COI which were no later than 2015 with the majority of them very general in nature in their treatment of the issues and therefore the adjudicator arrived at a decision not reasonable to the Wednesbury standard;

(2) procedural impropriety/unfairness in the adjudicator’s failure to enquire or discover why the applicant refused to appear before the Board to be examined in person;

(3) procedural impropriety/unfairness in the adjudicator’s failure to call for any psychological or psychiatric evaluation and report on the applicant;

(4) procedural impropriety/unfairness in the adjudicator’s failure to take into account of the cultural experience of the applicant; and

(5) procedural impropriety/unfairness in the adjudicator’s failure to take into account the nexus of political parties and official corruption which exists in India making the persecution of the applicant effectively persecution by the state.  

14.  For ground (1) of his complaint of the Board relying on outdated COI which were too general in their treatment of the issues, the applicant did not provide any particulars orspecifics or elaboration as to how such COI, if indeed they were outdated or too narrow or too general, had led to the Board’s decision being irrational or Wednesbury unreasonable in the public law sense.  In the absence of any legal error being identified by the applicant, I find this complaint of his without merit.

15.  As for grounds (2), (3) and (4) which can be considered together due to the similar nature of the applicant’s complaints essentially over the Board’s rejection of his claim on credibility when he declined to testify at his oral hearing, of which the applicant argued in the Form as follows:

“ 2. The principal reason given by the Adjudicator for denying the appeal was that the Applicant had refused to appear personally to be examined. It is submitted that it would be reasonable to have taken into consideration the Applicant’s state of mind in doing so. The Applicant claims to have been persecuted, subjected to violence and threats of violence. He feels that these threats are present even in Hong Kong. His family is possibly also in danger and he is uprooted and separated from home and family. With the weight of these concerns upon his mind, it would be understandable that he does not always make decisions in accord with his best interests. In this regard, the Adjudicator should have called for a psychological or psychiatric report before making a decision.

3. Further, the cultural background of the Applicant is one where official and police corruption are rife.  In such a mindset the authorities are not easily trusted and making statements before an official in a personal capacity is not only frightening but subjectively dangerous.  The Adjudicatorcould have called for more information from the Applicant in writing, at least as an initial stage.”

16.  These alleged psychological and cultural backgrounds of the applicant which he claims to have affected or inhibited his decision to give evidence were however never raised nor were apparent during his oral hearing before the adjudicator who recorded this in the Board’s decision:

“ 59. At the hearing on 16 January 2018 it was repeatedly and clearly explained to the Applicant that the Board would be unable to assess the credibility of his account unless he was prepared to give evidence and answerquestions from the Board. The consequence of failing to give evidence were made clear to the Appellant. Nevertheless he persisted [my emphasis] in refusing to give evidence.”

17.  Nor can I find any indication or suggestion in his earlier NCF or record of his screening interview before the Immigration Department to suggest that a psychological or psychiatric report may be necessary when he was clearly able to present and articulate his claim without any difficulty during that process, and I find it difficult to accept that the applicant as a claimant for non-refoulement protection would not want to seize the opportunity at his appeal hearing to persuade the Board and the adjudicator by way of oral evidence that the Director was wrong in rejecting his claim, whatever the psychological or cultural inhibition he may have at that time. There is simply no evidence to suggest that his refusal to testify at his appeal hearing before the adjudicator was due to any psychological or cultural inhibition on his part, and that this argument seems to me just a belated but lame attempt to justify his refusal to testify at that hearing and to shift the blame onto the Board.  In the premises I do not find any merit or basis in these grounds of the applicant.

18.  As for his last ground about the adjudicator’s failure to take into account of the nexus of political parties and official corruption in India which made the persecution of him as one by the state, his argument in his Form is this:

“ 4. From the COI used by the Adjudicator, it appears that there is some understanding of police and political corruption in India. However, there isa close nexus between these in India. The corruption is not merely pecuniary but also a culture of favours and abuse of power. In addition, the Akali Dal Party was the government of Punjab until March 2017 and could, as a large and significant party, easily be again. It has close links to the Bharatiya Janata party which is extremely large and powerful party in India and at present forms the government of the nation. The Adjudicator dwelled too much on the origin of the dispute with AK and RK and failed to give due emphasis to the fact that the persecution was and continues to be effected by political organizations with close links to government and by the police, an organ of the State. This means that, effectively, the persecution directed against the Applicant is a form of State persecution or at least that it is done by or with the acquiescence of State Officials.”

19.  For the reason already given by the adjudicator in the Board’s decision as noted above, and as clearly found by the Director in his decision and accepted by the Board, the applicant’s alleged fear of harms from AK arose from a private and personal dispute between two families without any official involvement based on the evidence available the evaluation of which the Director was entitled to make as the primary decision maker, and there is simply no evidential basis before the adjudicator for him to otherwise look intothe possibility of any state persecution against the applicant in the circumstances of his case.

20.  Further, while the COI relied on by the Director and the adjudicator may corroborate the applicant’s assertion of political and police corruptions in general in India, as held by the Court of Appeal, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or persecution upon his return: see Re RS CACV 206/2012, 20 August 2013.  There is simply no basis for any suggestion that the extended concept of state acquiescence is applicable in this case, nor is there basis to accept that upon his return to India, the applicant would face any real and personal risk of being subjected to persecution by the state or the government arising from his dispute with AK.  In the premises those additional COI submitted by the applicant in his present application though more recent or more updated would not in my judgment advance his claim any further.

21.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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