BRAR MANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 340/2018

[2018] HKCA 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 340 OF 2018

(ON APPEAL FROM HCAL 481/2017)

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J U D G M E N T

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Hon L Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 18 July 2018 in HCAL 481/2017 refusing leave to the applicant to apply for judicial review.  The applicant is an Indian national.  He arrived in Hong Kong as a visitor on 26 February 2014 and was allowed to stay until 4 March 2014. He overstayed and surrendered to the Immigration Department on 3 April 2014. He raised a non-refoulement claim on 9 April 2014.  His claim is based on his fear that he would be harmed or even killed by his creditor a Mr Gurpiar Singh, (“Gurpiar”) because of a money dispute with him and/or be arrested by the police for the attempted murder of his uncle.

2.  His claim was dismissed by the Director of Immigration (“the Director”) on 25 October 2016.  He lodged an appeal/petition with the Torture Claims Appeal Board (“the Board”) which dismissed his appeal on 31 July 2017. He then filed a notice of application for leave to apply for judicial review on 4 August 2017 and requested an oral hearing which took place after several adjournments to await the result of his legal aid application made on 1 March 2018.

3.  The background facts and evidence have been set out in detailin the decisions of the Director and the Board.  They are sufficiently set out by the Judge in a notification of the Judge’s decision (which is called “CALL-1 Form”) at [2018] HKCFI 1581. 

4.  In brief, the applicant wanted to start a fish and cattle farm with his uncle when he was about 18 years old.  He therefore borrowed 3 million Indian rupees from Gurpiar, a rich and powerful businessman in late 2011.  The loan was borrowed in his uncle’s name with him listed as one of the debtors.  The principal had to be repaid within three years with interest at 1% per month.

5.  He took care of the cattle farm whilst his uncle looked after the fish farm.  Business went well from early 2012 to mid‑2012.  But a heavy rain then flooded the farm with sewage and agricultural waste which killed all the fish and hurt the milk production by the cattle.  From May 2012, they could not pay the monthly payments.  They were forced to close their business in August 2012.  After selling all the farm equipment, they could only repay 800,000 rupees to Gurpiar.  Gurpiar demanded the outstanding balance of the principal within a month, but they failed to repay it.

6.  In late September 2012, several police officers came to his uncle’s home and threatened to take action against him if he did not settle the debt.  They threatened to frame him with false charges. 

7.  In October, his uncle was detained, beaten up and threatened by the police and then released. The police also went to his home to look for him, but he was out.  His brother told him that they had come to arrest him for not repaying the loan to Gurpiar.  He then went to live with a friend some 50 km away and only returned to visit his family at night.

8.  In November or December 2012, his uncle was ambushed and beaten up by some strangers.  They said that if he did not repay Gurpiar soon, they would kill him on the next occasion.  A group of unknown men discovered his hiding place not long thereafter.  He was also ambushed, assaulted and threatened with death if he did not repay the debt to Gurpiar.

9.  In February 2013 his uncle was invited to Gurpiar’s home to discuss the debt.  His uncle was offered a drink and was poisoned and killed.  A post-mortem confirmed that his uncle had died of poisoning.  A friend told him that his uncle’s wife had reported to the police that he had poisoned his uncle and the police were searching for him.  He was scared and took a 10‑hour train journey to hide in Rajasthan.

10.  One day in May 2013 when he was in Rajasthan, five men armed with sticks came in a jeep.  They claimed to be sent by Gurpiar.  They threatened to kill him if he did not repay the debt.  They slapped and punched him before he could run away.  He then hid in an empty farmhouse of a friend to make plan to go abroad.  But he was again located in August 2013 by some unknown attackers and had to hide elsewhere.  He lived in this way for five months.

11.  When he was hiding in the empty farmhouse, the police as well as unknown men had come to look for him separately but failed.  One day in January 2014, he saw a police car approaching the empty farmhouse.  He then escaped and hid in the nearby fields for hours. In February 2014, he went to Delhi and then left India.  He arrived in Hong Kong as a visitor on 26 February 2014 and raised the non-refoulement claim on 9 April 2014.  

12.  By a notice of decision dated 25 October 2016, the Director decided against his claim.  The decision covered BOR 2 risk[1], BOR 3 risk[2], torture risk[3], and persecution risk[4]. He appealed to the Board.  After an oral hearing on 26 June 2017, the Board dismissed the appeal on 31 July 2017.  The Board, having considered all the materials and oral evidence of the applicant, found at [55] of the decision that he was not a truthful witness and his evidence totally unreliable.  It held that he had failed to establish a case of non-refoulement under all applicable grounds.

The Judge’s decision

13.  The intended application for judicial review was in respect of the decision of the Board. The form 86 filed by the applicant on 4 August 2017 did not contain any grounds for judicial review.  In the supporting affirmation filed on the same day, the applicant provided the following grounds:

(1)   The Board failed to make proper and sufficient research and enquiry into the COI and cherry-picked the COI thereby unfairly dismissed the applicant’s claim on all applicable grounds.

(2)   Wrongly refused the applicant’s claim on BOR 2 risk without any interview or consideration of his further facts and grounds.

(3)   Erred in not accepting that the applicant faced genuine and substantial risk of being subjected to ill-treatment from his opponents, the police and his uncle’s family and wrongly rejected his claim on BOR 3 risk.

(4)   Failing to evaluate and make a finding of facts as to whether there exists a consistent pattern of gross and flagrant abuses of human rights in India and whether there was state protection for the applicant.

14.  On 18 July 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  The Judge, after summarizing the background of the case as well as the decisions of the Director and the Board in the CALL-1 Form, gave the following reasons at [15] – [21] for her refusal to grant leave:

“Leave to apply for judicial review

15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find no fault with the adjudicator’s decision. The same applies to the decision of the Director. The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

16. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with Country of Origin (“COI”) information. He does not provide particulars but he submits the adjudicator cherry picked information that resulted in an unreasonable finding. He submits the adjudicator failed to consider whether there is a consistent pattern of human rights abuses in India and whether there was State protection for the applicant.

17. The adjudicator made a finding that the applicant was not at risk under any applicable ground because he did not believe he was a genuine claimant. He set out in his decision his findings and reasons for his findings. There was no need therefore, to look into COI. In any event, the applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights. For the same reason, it was not necessary to assess State acquiescence. There are no merits in the grounds highlighted above.

18. The applicant criticises the adjudicator for doubting his credibility. 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. There are other criticisms of the adjudicator’s findings which I will not disturb. He evaluated the evidence and gave full reasons for his findings. The applicant attempts to introduce new evidence in his affirmation; he says his sister was recently shot and his home attacked and he is now dragged into some false cases by his opponents. This was not part of his case before the Director or the adjudicator of the TCAB. He specifically says he was not given any chance during his appeal to provide this kind of information but I find that hard to believe. I would not consider new evidence, even if there were any particulars, in an application of this nature. I would doubt its veracity when the applicant seems to suggest that his claim is now political and his enemies are looking for him because he and “my party is the main party whom bring this corrupt government into the court.” See paragraph 15(a). This is the first suggestion of politics being behind his claim. In any event, the court is not to determine the merits of the applicants failed claim.

20. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made 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. This applies also to the Director’s decision.

21. 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.”

The Appeal

15.  In the Notice of Appeal filed on 25 July 2018, the applicant put forward the following grounds of appeal:

“1. While I agree that evaluation of evidence may be a matter for the Director and the Board, I believe that the Deputy High Court Judge Woodcock should have put a stop to such evaluation as the Adjudicator at the Board has wrongly determined my case by concluding my case is fabricated.

2. There has been a time lapse and my experience has been traumatic. I believe that the authorities should recognize the fact that when one is bewildered or frightened, there may be something that get left behind. I never intentionally omitted anything and it is highly unfair that the Adjudicator has come to such conclusion.

3. The decision is highly unfair and prejudicial and biased by leaning towards the decisions given by the Director of Immigration and Torture Claims Appeal Board.

4. I therefore seek a reconsideration of my case to be heard by way of an oral hearing with an interpreter arranged so I can put forward my reasons orally in my first language in person.”

16.  On 8 November 2018, the applicant lodged skeleton submission in which he just repeated the grounds of appeal as set out in the Notice of Appeal.

17.  We heard the appeal on 7 December 2018. 

Discussion

18.  None of the grounds set out in the notice of appeal and the skeleton submissions constitutes a viable ground for reversing the Judge’s decision.  The applicant failed to advance any effective arguments against the analysis of the Judge.  In any event, in our judgment, the applicant’s challenge to the Board’s decision is without merit.  As set out at [47] to [57] of the Board’s decision, the Board gave due consideration to all the oral evidence, material and information provided by the applicant.  The Board gave rational reasons for making the adverse finding on his credibility.  The Judge, after rigorous examination and anxious scrutiny, did not find any error of law in the Board’s decision or any procedural unfairness in the process.

19.  Having considered the materials before us, as well as the submissions of the applicant, we find nothing that can justify a reversal of the Judge’s decision.  We agree with the Judge that leave to apply for judicial review should be refused.

20.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.