PAKHAR RAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL637/2017

[2018] HKCFI 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 637 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 born in 1959 who last entered Hong Kong as a visitor on 18 July 2006.  He overstayed and was arrested by the police on 5 January 2009.  Only then did he lodge a torture claim which was rejected by the Director of Immigration (“the Director”) on 12 September 2012 as was his appeal/petition on 22 October 2012.  The applicant then absconded and failed to appear in court to answer Immigration offences on 7 December 2012.  An arrest warrant was issued.

2.  The applicant then made a written application for protection again on 11 December 2014 which led to his arrest on 22 January 2015.  The applicant did not submit the supplementary claim form for his second application until 24 March 2016.  The Director rejected the applicant’s persecution risk claim and BOR 3 risk claim after an interview on 13 June 2016 and his BOR 2 risk claim on 27 April 2017.  The applicant lodged an appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 1 September 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 18 September 2017 and requested an oral hearing.  The applicant appeared in person on 20 February 2018 after having had his legal aid application refused.

3.  During the oral hearing the applicant confirmed the grounds set out in his supporting affirmation.  In answer to questions, the applicant said he did not inform the adjudicator of the TCAB that he was confused before or at the oral hearing and also reiterated that his problems at home had not been resolved.  Only after answering several questions did the applicant suddenly complain that he had flu, had had a sleepless night and was under a lot of tension.  Having already addressed the applicant’s grounds there was no need to consider an adjournment of the hearing for health reasons.  In any event, the applicant appeared in good health and did not appear to suffer from the flu or any apparant illness.

4.  The basis of his claim was that if he were to return to India he would be harmed or killed by his former brother-in-law called Gopi, a member of the Indian National Congress (“the INC”) called Jarnail Singh and/or family members of Raje and her husband who falsely accuse the applicant of having had sexual intercourse with her.  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.

5.  The applicant had seven years of education and then worked as a farm labourer.  He is married with three children.  He claimed to have been an active member of the Bahujan Samaj Party (“BSP”) since 1990.  In a village council election of 2001 he was a candidate put forward by the BSP.  Before the election, a member of the Indian National Congress (“INC”) threaten to kill the applicant if he did not withdraw from the election.  The INC had put forward Jarnail Singh as their candidate.  The applicant withdrew and joined the Shiromani Akali Dal party (“SAD”) because they promised to protect him.  This was a direct causation of the SAD winning the election.

6.  This infuriated the losing candidate, Jarnail Singh and the INC which meant from 2001 to 2005 they harassed the applicant at his home on a consistent and constant basis but he managed to run away from them every time they came.  The INC hired people who targeted him on the streets; randomly scolding him and attacking him with weapons.  He was accused of losing the election for the INC.  He had suffered internal injuries due to the physical random attacks.

7.  The reason the families of Raje and her husband were intent on harming the applicant was because he had brokered their marriage in 2001.  By 2004 they had had two children.  Her husband’s family then found out that she had had love affairs with other men before their marriage and continued with these affairs after their marriage.  His family sent her and the two children to the applicant’s home because of this revelation.  They asked the applicant to send her and the children back to her parents.  They stayed with the applicant in his home for three nights before her family came to pick them up.  She then accused the applicant of having sexual intercourse with her for those three nights.  As a result, both the families of Raje and her husband hate him and want to harm him.  From 2004 to 2005 the two families went to the applicant’s home to hurt him up to about 15 times but on each occasion the applicant escaped through the back door before any confrontation.

8.  As far as his dispute with Gopi was concerned, in 2001 the applicant’s sister married him without realising that he was a drug addict and a wife beater.  He was also a supporter of the INC.  Two months after their marriage, his sister left him and returned to live with the applicant’s family. After that, Gopi would come to their home a couple times a month and demand she returned home.  He would come with unknown males brandishing weapons.  This resulted in many physical confrontations between them and the applicant.  The applicant only suffered minor bruises during these confrontations.  The applicant never reported Gopi to the police because his brother-in-law was a police officer.

9.  The applicant moved away from his home to hide from Gopi and his other enemies in 2005 for five or six months and eventually left India in May 2006.  After the applicant landed in Hong Kong his family told him that his sister had remarried and Gopi no longer harassed her and their family.  The current head of the village in 2016 was now Jarnail Singh but the applicant was sure that his enemies in the INC would still try and hurt him.  As for Raje, she eloped with another man in about 2011 and her husband remarried in about 2015.  Despite this, both families were still looking for him for revenge.

10.  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”).

11.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  He set out his approach when assessing the credibility of the applicant’s claims in the overall context of considering whether he faced a real risk of persecution, torture or CIDTP.  He reminded himself that it was quite possible for the centrepiece of the applicant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness.

12.  The adjudicator concluded that the applicant was not a credible claimant and nothing he said during the appeal or has presented in evidence can be given any credence whatsoever.  He took into account the fact that the applicant overstayed in Hong Kong but did not lodge any claim for protection until after his arrest.  This was not the behaviour of someone genuinely in need of international protection and this affects his credibility.  His credibility is further damaged by his absconding and failure to appear in court as directed.  The fact he did not make another claim for protection until late 2014 having remained underground in Hong Kong for over two years also affected his credibility.

13.  The adjudicator then proceeded to highlight the applicant’s numerous discrepancies and many material variations in his evidence over the years.  These variations in his evidence were serious such as his statement that he stood as a candidate for the BSP but has also said he stood as an independent candidate on the encouragement of his neighbours.  The particulars surrounding the false allegation of rape differ; he told the adjudicator that he was accused of having an affair with the bride before he arranged the marriage but had told Immigration officers that he was accused of raping Raje during the three days that she stayed with him after rejection by her husband.  The adjudicator asked for explanations from the applicant about discrepancies but often he had no explanation.

14.  The adjudicator had no qualms in discounting the applicant’s political activity because not only were there discrepancies and differing accounts but the applicant could give no detail or demonstrate any knowledge of his political party’s history or policies, its organisation, its personnel or any information relating to it.

15.  His reasons are given in full in his decision but the adjudicator had no hesitation in rejecting the applicant’s evidence in its entirety and found he had not established any of the facts of his claim.  He found the applicant was unsuccessful in showing he was at risk of persecution and nor was he able to invoke the protection of BOR 2 or BOR 3.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

16.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

17.  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 was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

18.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding. There is no merit in this ground.

19.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  The fact is, the adjudicator did not consider any such information because he did not believe the applicant was a genuine claimant.  I find no merit in this ground.

20.  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.

21.  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