GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL747/2017

[2018] HKCFI 1764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 747 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 came to Hong Kong on 31 May 2009 and was permitted to remain as a visitor until 14 June 2009 but overstayed in Hong Kong.  He was arrested by the police on 11 July 2009 and then raised a torture claim.  That torture claim was rejected by the Director of Immigration (“the Director”) on 21 October 2013.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 16 April 2014.

2.  Prior to that appeal he had made a non-refoulement protection claim.  On 19 October 2014 the applicant was arrested for the offence of wounding and on 15 May 2015 he was sentenced to four years and one-month’s imprisonment.  His non-refoulement protection claim was assessed whilst he served his sentence and rejected by the Director on 28 December 2016; on the following applicable grounds, his BOR 2 risk, his BOR 3 risk and his persecution risk claim.

3.  The applicant lodged an appeal/petition to the torture claims appeal board against that Director’s decision and it was rejected on 17 August 2017.  He then filed a notice of application for leave to apply for judicial review on 10 October 2017 and requested an oral hearing.  The applicant appeared at the hearing on 21 March 2018 in person.

4.  The basis of his claim was that if he were to return to India he would be harmed or even killed by Sarvan Singh (“Sarvan”) and Gurnam Singh (“Gurnam”) because they were supporters of the Akali Dal Party (“ADP”) and the applicant was a supporter of the Congress Party (“CP”) and he had had a separate land border dispute Gurnam who was his neighbour.  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 was born in the Punjab, had 12 years of education until 2007 and then farmed his family’s land. After he arrived in Hong Kong, he married a Hong Kong resident.  Until 2007 he supported the ADP but in that year he and his father switch political allegiance to support CP at the request of his father’s friends.  He participated in political activities, campaigning for the CP and canvass votes for elections.  In particular, for the election of village head in mid-2008 which was hotly contested but ultimately won by Sarvan of the ADP who also became chairman of the Sikh temple committee in the village.

6.  Three months after the elections there was a village fair and a podium was erected for political parties but Sarvan and his ADP supporters refused to let the CP candidate and the applicant and other CP supporters sit on the podium with them.  This rejection stemmed from political grudges and led to a fight.  The ADP produced weapons and clearly had planned a fight.  The CP supporters were unarmed.  When the fight became very physical and the CP supporters were injured the police then stepped in.  The ADP members were released almost immediately but the CP supporters were only released after they were taken to the police station and only after the police asked for bribes.

7.  The applicant went to a government hospital to seek medical attention for injuries to his right shoulder and lower back; he was treated and released that day.  After the fighting incident he continue to participate in CP political events.  Not long after he had a fight with Gurnam who was a supporter of the ADP but also his father’s cousin and a neighbour who had farmland that bordered their family farm land.

8.  One day in around October 2008 Gurnam drove his tractor and broke the border fence between his farmland and the farm land belonging to the applicant’s family. When the applicant challenged him, telling him to rebuild the borderline, Gurnam refused and push the applicant.  It was a minor scuffle and the two men were separated by farmworkers.  There was no physical violence involved.  However, one hour later three police officers came to the applicant’s house to arrest him.  The applicant believed that Gurnam had made a false report to the police that the applicant had assaulted him.  His father persuaded the police it was a minor matter and the applicant would come to the station later himself.

9.  Gurnam insisted the police arrest him so the applicant ran away to a friend’s home.  The police arrested the applicant’s father instead and it took members of the CP to insist the police release his father but only after he had been detained for a few hours.  The applicant went to hide at a friend’s place in Amritsar until January 2009 and during that time he heard that Gurnam and Sarvan had filed three false, cases against him at the police station in Amritsar, two theft cases and one fighting case.  The applicant had to leave quickly and went to a friend’s home in Muktsar to hide.  Meanwhile, the applicant’s friend from home told him that the applicant’s parents had been harassed by the police looking for the applicant at home to such an extent that they had threatened to arrest his parents so they left for his mother’s maternal home in around November 2008.

10.  He hid in Muktstar for about two months from January to March 2009 and decided to leave the country with the help of friends.  He obtained a Visa for Thailand but once there he was told by people that the Hong Kong government would help people who claimed torture so he flew to Hong Kong from Thailand.

11.  In his decision of 17 August 2017 the adjudicator (as did the Director in his decision of 28 December 2016) analysed the applicant’s claim under the following applicable grounds;

(a)   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”);

(b)   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

(c)   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”).

12.  It is these two decisions in respect of which relief is sought by the applicant.  The adjudicator treated the appeal as a rehearing and conducted an oral appeal hearing.  He correctly set out the law and key legal principles applicable to the above three grounds. He set out and considered the applicant’s evidence and claim.

13.  Unlike the Director, who found that on the applicant’s own evidence he was 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 did consider the applicant’s credibility.  He considered section 37ZD of the Immigration Ordinance and found he could take into account the fact that the applicant did not lodge his claim as soon as practicable after arriving in Hong Kong and this affected his credibility.  He overstayed and did not lodge his claim until after he was arrested.  The purpose of coming to Hong Kong was to seek protection and he should have done so as soon as he arrived.  He had ample opportunity at the airport to ask Immigration officers and even police officers there.  His explanation to the adjudicator why he did not until after his arrest was weak.  It made his intention to seek protection in Hong Kong suspicious.

14.  The adjudicator highlighted a discrepancy in his torture claim form where he said political party members wanted to take his father’s land.  The adjudicator clarified with him that those people were Sarvan and Gurnam from the ADP but he agreed that the only dispute was because Gurnam refused to rebuild the border he knocked down between their land.  This was a private and personal dispute with no political overtones.

15.  As for the three false criminal cases that the applicant said his friend told him that Gurman filed against him in Amritsar; it was hearsay evidence that was never corroborated.  The applicant has been saying since 2013 that he was going to submit the First Information Reports to prove these false criminal cases had been fabricated against him.  To date, the applicant has not been able to produce them.  Hearsay evidence is not in itself inadmissible, but the weight which can be given to such evidence is, by its nature, greatly reduced without anything further to support it.  Hearsay evidence cannot prove the truth of facts in the absence of supporting evidence.

16.  The adjudicator considered his findings and the applicant’s persecution risk.  He found the applicant’s fears stemmed from purely private matters; the border building dispute between Gurnam’s land and his family’s land and the fighting incident when Sarvan and his supporters refused to let CP supporters which included the applicant sit on the podium at the village fair three months after Sarvan won the village head election.  The adjudicator described these two disputes as private in nature.

17.  The adjudicator had previously identified that the applicant had to show a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion; a reason set out under the Refugee Convention.  The adjudicator identified that Sarvan never confronted the applicant because he supported the CP before the election or even after the election and certainly not after the fight at the village fair.  That fight would appear to be an isolated incident where the applicant was not even the target.  He certainly was not being persecuted himself.  The adjudicator found the applicant had failed to show a well-founded fear of being persecuted for a Refugee Convention reason.

18.  The adjudicator found that even on his own facts, the injuries he suffered at the fight at the fair were not serious enough to attain a minimum level of severity.  He did receive some treatment at a hospital but was discharged on the same day with some painkillers and ointment. To invoke BOR 3, the applicant had to prove that he will suffer injuries that will attain a minimum level of severity and he faces a genuine and substantial risk of being subjected to such ill-treatment; the adjudicator found he was unable to successfully invoke protection under BOR 3.

19.  There was also no evidence to show that there was a real risk of the applicant being arbitrarily deprived of life, having the death penalty imposed on him or otherwise being deprived of his rights under BOR 2; his BOR 2 risk claim failed as well.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

20.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decisions of the Director and the adjudicator to be without fault.  They have both analysed the material, claims and evidence carefully.  The applicant’s complaints against them and the procedure undertaken are not made out.

21.  The grounds against the Director are essentially as follows; the first ground is that the Director failed to properly consider the concept of extended State acquiescence. The applicant did assert that the police in India would not help him because they would automatically side with the ADP as the ruling party in the Punjab and they were corrupt.  However, the Director did consider the applicant’s own evidence that they released the applicant’s father after they arrested him two hours later.  It was his own evidence that the police stopped harassing his parents when they obtained a letter from a government authority revealing that his parents were never involved in the applicant’s case.  It was his own evidence that the police were taking action to investigate the ADP suspects after the murder of the CP leader in his village which showed that the police were compiling with the rule of law and discharging their statutory duties.  It was his own evidence that he never informed the police that he had no involvement in the three purported false criminal cases.

22.  The Director considered Country of Origin Information (“COI”) that did support the applicant’s allegations of police corruption but also considered COI that indicated police officers or political leaders were arrested and jailed for corruption and misconduct.  There was COI that showed reforms were in place to combat corruption and there were alternative avenues to seek justice in India which led the Director to conclude there was reasonable State protection available to the applicant if he was at any risk if refouled.

23.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts or torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  The Director did not have to seriously consider the concept of extended State acquiescence.  In his affirmation the applicant has stated he was tortured at the behest of and in full collusion of the police, State law enforcement agencies as well as political parties and his misfortunes were a direct result of misconduct of police officers.  He accuses the Director of failing to take into account the failure of the Indian government in protecting him.  This was not his evidence and unfortunately his affirmation is misleading.  There is no merit in this ground.

24.  The applicant’s second ground against the Director is that he has failed to consider give sufficient weight to COI that is in the applicant’s favour.  He places too much weight on COI that goes against the applicant’s submissions.  The Director has failed to adhere to a high standard of fairness and his decision is Wednesbury unreasonable.  The issue I have with this ground is that there are no particulars to support it.  I am satisfied that the Director has referred to up-to-date, relevant and objective COI and found COI in the applicant’s favour as well as COI that supports his finding that if the applicant was at risk there is available State protection plus, according to the COI, internal relocation is available without undue hardship.  There is no merit in this ground.

25.  There is only one ground against the adjudicator and that is he failed to give the applicant sufficient chance to obtain evidence to support his claim and appeal.  However, the adjudicator records in his decision that the applicant gave evidence in the oral hearing and adopted as evidence what was in the appeal bundle.  There is no record of him asking for any opportunity or chance to obtain more evidence to support his claim appeal.

26.  In any event, he has been saying from as early as 2013 that he will be submitting documentary evidence to support his claim, in particular the First Information Reports but they are yet to be seen.  The only record of a mention of these documents in the appeal hearing is that the applicant told the adjudicator that it was difficult to obtain these documents and he confirmed he was unable to provide such documentary evidence to the TCAB (see para 36 of the adjudicator’s decision).  That is not the same as a request for more time.  There is no merit in this ground.

27.  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.

28.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, 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