MANGAL SINGH AND OTHERS v. FRASER SYME, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 341/2018

[2019] HKCFI 817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 341 of 2018

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 Applicants in open court;

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st and 2^nd applicant are husband and wife and the other three applicants are their minor children.  They are all nationals of India who arrived in Hong Kong respectively in 2014 and 2015 as visitors but overstayed and subsequently raised non-refoulement claims for protection with the Immigration Department on the basis that if they returned to India they would be harmed or killed by members of the political party Bharatiya Janata Party (“BJP”) and/or their coalition partner Shiromani Akali Dal (“SAD”) because the 1^st applicant had quitted their party and possessed documents of their illegal activities.  The applicants have since been released on recognizance pending the determination of their claim.

2.  The 1^st applicant (“A1”) was born and raised in Village Dharamkot, District Moga, Punjab, India.  After leaving school he worked as a farmer and married the 2^nd applicant (“A2”) who subsequently gave birth to the 3^rd and 4^th applicants (“A3” and “A4”) in India.

3.  In about 2008 A1 joined BJP regularly attending their rallies and distributing leaflets for the party, and later A2 also became a supporter and joined their activities together with A1.

4.  Over the years A1 however became disillusioned with BJP’s policies, and after he discovered documents showing illegal activities engaged by the party’s leaders, he and A2 quitted BJP in 2012 to join rival Aam Aadmi Party (“AAP”).

5.  One evening in 2013 after attending a party rally and on their way home, A1 and his cousin were confronted by a group of BJP members who demanded that A1 handed over those documents, and when A1 refused, they proceeded to attack him and his cousin with wooden sticks and iron bars.  Eventually they managed to escape and made their way home when they were later taken to the hospital for treatments to their injuries.  They however did not report the matter to the police.

6.  Several weeks later when A1 and his cousin were putting up posters for their party in the streets, they were again confronted by the BJP people demanding for the returning of those documents, and when A1 refused, the BJP people again beat them with wooden sticks and iron bars but they again managed to escape.

7.  After the attack A1 reported the assault to the police and showed them those documents about BJP’s illegal activities, but the police accused him of making false charges against BJP and told him to go away without returning the documents to him, which led A1 to suspect that the police were under BJP’s influence.

8.  Thereafter as he continued to receive threats and harassments from the BJP people, A1 decided to leave India for his own safety, and so on 27 April 2014 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection.

9.  After A1’s departure from India, A2 became the target of threats and harassments from the BJP people, and when the police again failed to offer any assistance, A2 decided to leave India with the children to join A1 in Hong Kong on 26 January 2015 and also raised their non-refoulement claims for protection.

10.  On 30 April 2016 A2 gave birth to the 5^th applicant (“A5”) in Hong Kong and also raised a non-refoulement protection for him, and on 5 April 2017 the applicants completed their Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

12.  In his decision the Director took into account all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk from the BJP people upon their return to India due to the low intensity and frequency of past ill-treatment from them, that the documents had already been taken away by the police whom A1 suspected were under BJP’s influence and hence there is no longer any reason for the BJP people to target the applicants, that in the absence of official involvement that state or police protection would be available to the applicants 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 across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move his family to other part of India away from their home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for those BJP/SAD people to locate them.

13.  On 12 June 2017 the applicants filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 14 November 2017 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board.  On 21 December 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

14.  In its decision the Board found multiple material inconsistencies in the evidence of A1 and A2 as well as multiple material implausibilities in their claims that they are not credible witnesses, and rejected their claims of being supporters or members of BJP, SAD or AAP, or that they had participated in any of their political activities, or that A1 had ever possessed any of the documents said to show illegal activities of BJP/SAD, or that they had ever been threatened harassed or assaulted by the BJP/SAD people, and concluded that they have fabricated their claims so as to create a basis upon which to apply for non-refoulement protection that their claims failed on all applicable grounds. 

15.  On 5 March 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in it they put forward the following grounds for their intended challenge:

(1)  misdirection in law in that the adjudicator misdirected himself on the law by taking into account that A1 and/or the other applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

16.  These are however all just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of them, or that they are reasonably arguable for their intended challenge.

17.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before the appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for the appeal.

18.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decision should be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at their oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for the appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

19.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, and that judicial review is not an avenue for revisiting the assessments by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

20.  In the present case, the adjudicator rejected the applicants’ claim based on his adverse findings on the credibility of both A1 and A2 after hearing them in their evidence at their appeal hearing for the detailed analysis and reasons set out in §§29 – 47 of the Board’s decision, and in the absence of any legal error or procedural unfairness being properly and clearly shown by the applicants, I do not find any reasonably arguable basis to challenge these findings of the Board.

21.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision subsequently confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22.  In the premises and having considered 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 applicants’ claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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