BHARDWAJ RAJNISH KUMAR (father) for BHARDWAJ HIMAKSH (son) v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1145/2017
HCAL 1146/2017
HCAL 1147/2017

[2018] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1145 of 2017

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1146 of 2017

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1147 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 present/absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  These are three separate claims by three members of a family from India.  For ease of reference, I am going to refer to them generically as the Applicants but also, where appropriate, as the Husband (HCAL 1146 of 2017), the Wife (HCAL 1147 of 2017) and the son (HCAL 1145 of 2017).

Procedural history

2.  The Applicants are a family.  They entered Hong Kong legally on 12 November 2015 and were permitted to stay as visitors until 26 November 2015.  They did not depart on that date and were overstaying from 27 November, on which date they surrendered to the Department of Immigration.  They were released on recognisance on 29 November 2015.  They submitted non-refoulement (“NRF”) claims by way of written representation on 3 December 2015 and their NRF claim forms on 15 April 2016.

3.  The Applicants attended a screening interview on 16 May 2016.  The Director of Immigration (“the Director”) dismissed their claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 22 June 2016 and by Notice of Further Decision on 7 August 2017, their application under BOR 2 was also refused.  They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 27 June 2016.  The Adjudicator of the TCAB, Mr Gerard Muttrie, heard them on 2 November 2017.  He considered their appeal on all applicable grounds including BOR 2. The Adjudicator refused their appeal on 2 December 2017.

4.  The Applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.  The Applicants are all Indian nationals.  The Husband is a Hindu and belongs to the Pandit caste.  The Wife is a Sikh and belongs to the Jassal caste.  The Jassal caste is a higher caste than the Pandit caste.  The Husband has a Bachelor of Arts degree and appears to have been operating a successful business as a supervisor for two companies operated by his father between 2002 and 2015.  The background facts are based upon a family dispute as a result of the differences in religion and caste of the Husband and Wife.  They were married, in secret, on 15 January 2012 because of the objections of the Wife’s family.  Neither family was initially aware of the marriage and the couple therefore lived a short distance away from their home area of Moga. There was considerable antipathy between the two families and, allegedly, the Wife’s family damaged the home of her Husband’s family when they realised that their daughter was missing.  In September 2012, the couple went to live in Ludhiana, which is a two-hour bus journey from their home area.  By this stage, I understand that the Husband’s parents must have known about the marriage as they were financially supporting the couple.  His family were still the object of abuse from her family as were some of his friends.  The Wife’s family finally caught up with the couple in August 2013, at which time she was pregnant with their son.  They assaulted both the Husband and Wife.  Both of them were taken to a local clinic and kept in the clinic for observation for two days.  The assault was reported to the police whilst the couple were still in the clinic but resulted in telephone threats from the Wife’s family and therefore the couple fled back to their home area.  Their son was born in September 2013.  In early 2014, the Husband’s father was further assaulted.

6.  In addition to the religious differences between the families, the Wife’s family was connected to the Bharatiya Janata Party (“BJP”), which is one of two main political parties in India.  Her uncle was the president of the local party and her cousins were high ranking police officers.  The couple intimated that there was a political undercurrent to their predicament, but this is not made out on the facts.  The Husband has not suggested he is an active member of an opposition party nor that he has any political connections.  In early 2014, they say that BJP members also threatened the Husband’s family in order to discover the whereabouts of the Applicants.  In late 2014, an unknown group of people attacked all three of the Applicants and threatened to take the Son away.  All three Applicants and the Husband’s father were assaulted.  The Husband said he received a bleeding jaw and five broken teeth as a result.  His father was bruised and the Wife received head and leg injuries including at least 10 stitches to her foot.  The couple say that they have not fully recovered from that assault.  The matter was reported to the police the next day but the Husband and his father were then detained and only released after two hours because a bribe was paid.

7.  After this incident, the Applicants moved to Jalandhar and then to Chintpur, which was approximately 60 kilometres from their home area.  In early 2015, the Applicants allege that the home of the Husband’s father was once again damaged and a number of friends were assaulted by the Wife’s family.  The father received death threats.  The Applicants therefore moved once more, this time to Kot Kapoora.  In August 2015, the Husband’s father passed away and the Applicants returned to Moga for the funeral.  Prior to the funeral, they were once again assaulted by the Wife’s family but a neighbour interceded and the Wife’s family desisted.  After the funeral, the family returned to Kot Kapoora and obtained passports on 10 November 2015, taking a flight to Hong Kong the very next day.  The Husband alleged that he had to bribe both the police and an immigration officer in order to obtain his passport and to complete immigration at the airport.

The non-refoulement claim

8.  Under the Unified Screening Mechanism (“USM”), the Applicants’ claim was assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their home state.  Torture is defined as severe physical or mental pain and suffering inflicted by a public official or other person acting in an official capacity.  Those grounds cannot be speculative or theoretical and the risk of torture must be foreseeable, real, personal and present.  The standard of proof is a low one.

ii.     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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their home state.  The level of such mental or physical torture etc. must reach a minimum level of severity but generally involves actual bodily assault or intense physical and mental suffering.

iii.     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”).  Under “persecution risk”, the Applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their home state. 

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicants must establish a real risk that they will be arbitrarily deprived of their lives, have a death penalty imposed upon them; or be the victims of genocide or otherwise be deprived of their rights under BOR 2.

Decision and further decision of the Director

9.  The Director analysed the Applicants’ claim on all applicable grounds.  He considered a wide range of documentary evidence and considered the issue of inter-religious and inter-caste marriage and re-location in some detail.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicants were given every opportunity to state their case and to supplement the evidence before the Director.  In coming to his decision to reject their claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

10.  The Adjudicator analysed the Applicants’ claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He also went to some lengths to consider the issue of inter-religious and inter-caste marriage and a wide variety of material on the subject.  He canvassed that material with the Applicants.  He found that so far as the Husband was concerned there was a real risk of torture; that there is a substantial risk the Husband and Wife would be killed if refouled; that they would face a minimum level of severity of ill treatment and there was a real chance that they would be the subject of persecution.  He recognised the difficulties which the Applicants faced but found that systemic protection exists in India for couples in their situation despite police corruption and the problems with the judicial system.  The overriding issue was whether this couple could avail themselves of it and whether it would be unreasonable to expect them to do so.  Given the size of India and the very large population of its cities, as well as the educational background and experience of the Husband, the Adjudicator considered it reasonable to expect them to be able to relocate without risk.  He based this decision upon the fact that the COI suggests India is a federalised country with no evidence of inter-state identity checks such that a police force in one state would automatically contact another state’s force when newcomers arrive.

Leave to apply for judicial review

11.  Judicial Review is not a rehearing of the merits of the Applicant’s original application for Refugee status.  This is an application to apply for leave to judicially review the decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with their application in order to obtain leave to judicially review them.

Grounds of review

12.  There were no grounds of review.  They have not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

13.  Despite the fact that the Applicants failed to provide any grounds of review, I have considered the papers, grounds and submissions carefully.  I have dealt with them as a family unit on the assumption that they would wish to stand or fall on this application together. I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicants, the Director and Adjudicator engaged in a joint endeavour with the Applicants and considered all relevant criteria, gave the Applicants a reasonable opportunity to state their case and enquired into that case appropriately.  Indeed, the Adjudicator found both the Husband and Wife, to have established a case under various heads of claim.  The determination revolved around the issue of whether it was unreasonable or harsh to expect them to relocate to another part of India.  In coming to his determination on that issue he explained himself at length.  

14.  In my judgement, there is no reasonably arguable basis upon which the Applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.  I therefore refuse leave 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