SS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 69/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 69 OF 2015

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JUDGMENT

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1.  This is the Applicant’s application for Judicial Review, seeking relief against the Decisions of the Director of Immigration (the Director) and the Torture Claims Appeal Board (the Appeal Board), made on 22 May 2014 and 6 May 2015 respectively.

2.  The Applicant applied in person for leave to apply for a Judicial Review on 15 May 2015.  Legal Aid was granted to the Applicant subsequently.  An Anonymity Order was granted by Li J on 15 September 2015.  Leave was granted by me to amend the Applicant’s Notice of Application (Form 86).  Leave to apply for Judicial Review was granted by me on 29 February 2016.

Factual basis of the Applicant’s claim

3.  The Applicant is a national of India, he was born and raised at [K] in India and lived there until his departure from India in August 2006.

4.  The basis of his claim, briefly stated, was that he had borrowed 200,000 INR from [S] (the Creditor) in order to apply for emigration to Canada through the arrangement of [M] (the Agent).  He was unable to make repayment and he was verbally threatened by the Creditor that his legs would be broken if he did not pay.  The Applicant brought the Agent to see the Creditor and to appraise the Creditor of the position.  He was given two more months to pay.  The Applicant could not make repayment and he left [K] to live at [M] for 6 months.  After he returned to [K] he was physically assaulted by persons he believed to be associated with the Creditor.

5.  According to the Applicant, the Creditor was a political leader within the Communist Party of India (MARXIST) (CPM) in [K].  The Creditor was also a man of influence, having connections with the police and other government departments.  The Creditor had once brought a customer to the Applicant and introduced that customer as a police officer.

6.  After the physical assault – during which the Applicant suffers from cuts to his wrist and bleeding from his nose, and when the Applicant was still in a nursing home, police officers had taken a statement from him about the assault but he heard nothing from the police thereafter.  Believing the police had decided not to take action, the Applicant did not complain to the police about the assault anymore.

7.  As the Applicant was still unable to make payment, he was verbally threatened by the Creditor with a death threat should he failed to repay the loan.

8.  After the death threat, the Applicant made a report to the police.  The Applicant was told by the police that the Creditor had lodged a complaint against him for defaulting payment, and that a warrant of arrest was likely to be issued against him should he failed to make repayment.  The Applicant did not approach the police or other public authorities for assistance thereafter.

9.  As the Applicant was unable to repay the Creditor and he could not move to live with his brother in [K], and he would suffer hardship if he were to relocate to [M], he decided to leave for Hong Kong.

10.  The Applicant kept in touch with his family and he learnt that the Creditor had gone to look for him in 2006 and 2007, and had used abusive language to his mother and his brother, demanding to know where the Applicant was.  The Creditor also physically slapped the Applicant’s brother.

11.  The Applicant also learnt from a friend that the Creditor had joined another political party: the Bharatiya Janata Party (BJP) but could not give any further details.

12.  The Applicant claimed that he fears for his life if he were to return to India.

The Director’s Decision

13.  The Director assessed the Applicant’s claim on all applicable grounds and structured the assessment under 4 headings: (a) likelihood that the feared treatment would materialize; (b) consideration of the claimed BOR3 risk; (c) consideration of the persecution risk; and (d) consideration of the torture risk.

14.  In gist, the Director considered the material in support of the Applicant’s claim to be incredible: (a) the Applicant’s inconsistent account of where he took the Agent to meet the Creditor damaged his credibility; and (b) the fact that he was able to work openly in a restaurant for 6 months in [M] was also inconsistent with his claimed fear of being located by the Creditor and be harmed by the Creditor.

15.  The Director considered the COI materials and concluded that there was sufficient state protection in India, which in turn lowered or negate the level of risk.  The Director also concluded that internal relocation is viable in the case of the Applicant.

16.  The Director considered the Applicant did not satisfy the test for the BOR3 risk: the Applicant was unable to demonstrate he would face a genuine and substantial risk of being subjected to ill-treatment of a minimum level of severity were he to be refouled.  

17.  As for the “persecution risk”, the Director concluded the Applicant failed the test as the ill-treatment experienced by the Applicant stemmed from a private dispute, which is not covered by the definition of persecution.

18.  Finally, in relation to the torture risk, the Director concluded the Applicant failed to satisfy the criteria to establish torture with reference to, inter alia, the following: (a) the risk of ill-treatment materializing was small; (b) the dispute between the Applicant and the Creditor was purely a private monetary dispute; (c) the Applicant failed to show the claimed influence of the Creditor over the police; (d) there was no substantial grounds to show “state acquiescence”; and (e) the Applicant’s ability to leave India was indicative of a lack of state involvement.

19.  The Director rejected the Applicant’s non-refoulement claim.

Appeal Board’s Decision

20.  The Appeal Board considered the Applicant’s claim on all applicable grounds, including the Torture Risk, the BOR3 risk and the persecution risk.

21.  Under the Torture Risk, the Appeal Board concluded, inter alia, that the harm experienced by the Applicant did not fall within the definition of “torture” as it was done for the sole purpose of making him repay a loan.  While accepting the Creditor was a “rich and influential person in the Applicant’s locality” (para 67 of the Decision), the Appeal Board found that there was no evidence the Creditor was “acting in an official capacity, or on behalf of the state, or under the direction or control of, or in an way otherwise, than in his capacity as a private creditor, when dealing with the Applicant” (para 68 of the Decision).  The Appeal Board concluded that the Applicant “did not produce any evidence that the violation of human rights has been existing in India on a massive, gross and flagrant scale”, adding that even if the Applicant had done so, it would have been insufficient to show he would “personally be at risk” (para 75 of the Decision).  The Appeal Board did not accept the Applicant’s claim that the Creditor had connection with the police (which was based on one incident of the Creditor attending the Applicant’s store with someone whom the Creditor claimed to be a policeman).  The Appeal Board also referred to the failure of the Applicant to press on with his reporting of the Creditor’s threat.

22.  Under the BOR3 risk, the Appeal Board referred to the assault incident described by the Applicant and concluded the Applicant did not appear to suffer from any lasting severe injury.  It had not attained the level of torture under the BOR3 risk.  The availability of state protection and internal relocation further reduced any risk of the Applicant being subjected to ill-treatment under the BOR3.

23.  As for the persecution risk, the Appeal Board concluded that the Applicant’s case related to a private disputed does not fall within the definition of persecution.

24.  The Appeal Board affirmed the decision of the Director.

Grounds of Review

25.  The Applicant advanced the following 5 grounds of review:

(1)  Ground 1 – Failure of the Appeal Board to seek clarification at the oral hearing;

(2)  Ground 2 – Failure of the Director and the Appeal Board to make adequate enquiries into the country conditions of India and failure to explain their conclusion on the country condition of India;

(3)  Ground 3 – Errors by the Director and the Appeal Board in their consideration of state acquiescence and country conditions;

(4)  Ground 4 – Errors by the Director and the Appeal Board in their interpretation of “severe physical or mental suffering”; and

(5)  Ground 5 – Taking into account irrelevant matters and/or failure to take into account relevant matters by the Director and the Appeal Board.

Proposed Manner of dealing with the grounds advanced

26.  As some of these grounds overlap, I propose to deal with this application by considering the following issues:

(1)  Did the Appeal Board fail to seek clarification at the oral hearing as claimed?

(2)  Did the Appeal Board fail to make its own independent assessment relating to the country conditions of India?

(3)  Did the Director and/or the Appeal Board fail to make sufficient inquiry and to provide reasons for their assessment of the relevant country conditions?

(4)  Did the Director and/or the Appeal Board fail to consider the failure of state protection to the Applicant?

(5)  Did the Director and/or the Appeal Board fail to adequately consider whether the “death threat” could amount to mental suffering to fall within the meaning of “torture”?

(6)  Did the Director and/or the Appeal Board take into account irrelevant matters or fail to take into account relevant matters?

General principles

27.  It is trite law that judicial review is not a further appeal.  The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Director and/or the Appeal Board in dismissing the Applicant’s claim (a) made any error of law; and (b) handled the claim without compliance with the high standard of fairness as required by the law (as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187).  It is also important to bear in mind that while the burden of proof lies on the torture claimant Applicant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture, it is subjected to the requirement of “high standard of fairness” that both the Director and the Appeal Board must observe. What the “high standards of fairness” demand would depend on the circumstances of each individual case but ultimately it boils down to common sense and fairness (see TK v Jenkins & Anor [2013] 1 HKC 526).  The determination of a torture claim is a “joint endeavour”, the claimant cannot sit back and require the Director to disprove his claim (see CH v Director of Immigration [2011] 3 HKLRD 101).

Did the Appeal Board fail to seek clarification at the oral hearing as claimed?

28.  The Applicant submitted that the Appeal Board acted unfairly when it dismissed the appeal on the basis that some of the Applicant’s statements were incredible, without seeking clarification from the Applicant.

29.  The complaint was that the Appeal Board did not ask the Applicant whether he was able to give further descriptions of the man whom the Creditor claimed to be a police officer.

30.  The Applicant referred to ST v Betty Kwan and Another [2014] 4 HKLRD 277 and submitted that an important purpose of an oral hearing is for the Appeal Board to draw to the attention of an applicant matters that required clarification or elaboration so that they can be addressed by the applicant.

31.  One must bear in mind ST v Betty Kwan was basically on the issue of whether an oral hearing should have been held.  The Applicant was given an oral hearing in this case.  While the man whom the Creditor claimed to be a policeman was of importance in the Applicant’s claim (and the Applicant must have known of how important this piece of evidence was), given that the Applicant was legally represented during the hearing before the Director and given his response in relation to the identity of this man (that he did not know the so-called policeman nor the relationship between the Creditor and the said policeman (see Records of Interview dated 9 April 2015, Q&A 78-83)), I cannot see how it could be said that the Appeal Board had acted unfairly in failing to give the Applicant an opportunity to give further particulars to identity this man, when the Applicant had already demonstrated that he could not do so.

Did the Appeal Board fail to make its own independent assessment relating to the country conditions of India?

32.  One of the main complaints was that the Appeal Board did not indicate what materials had been under its consideration, the Appeal Board only mentioned having scrutinized “all the materials adduced by the parties, including the latest information on India” (para 72 of the Decision). The Appeal Board, unlike the Director, had not included in its Decision an index or a list of the materials under consideration.

33.  From the Index attached to the Director’ Decision, a total of 9 sets of COI materials were listed.  A hearing bundle was prepared for the use of the Appeal Board for the appeal hearing.  These 9 sets of COI materials together with 7 new sets of COI materials were included in the bundle (see the Affirmation of Lai, a Senior Immigration Officer who had conducted the hearing and made the Decision on behalf of the Director).  So, in a round-about way, this Court was informed of what COI materials were in fact placed before the Appeal Board.

34.  The Applicant referred to Re MI CACV 69/2014, (a case in which neither the Director nor the Appeal Board had listed out what material they had perused), and submitted that in this case, the mere inclusion of the materials in the hearing bundle does not mean the Appeal Board had considered them.  The Applicant placed particular reliance on the following passage in Re MI:

“40. The decision-maker should indicate the materials to which he has had regard in reaching his Decision and the information or particular passages on which he relies for his Decision. If the materials contain passages or information suggestive of a contrary view then the decision-maker should demonstrate that he is aware of them and has taken them into account.”

35.  I accept that it would have been better had the Appeal Board listed out all the materials it had perused and scrutinized.  However, the absence of such a list in this case is not, in my view, fatal.

36.  When the Appeal Board said it had scrutinized all the material adduced by parties, including the latest information on India, it must have meant all the documents included in the hearing bundle had been scrutinized.

37.  Although the Appeal Board only referred to one set of COI material when it accepted there was “police corruption” (para 82 of the Decision), this has be construed on the basis that the Appeal Board had scrutinized all the materials before it.  It cannot be said that the Appeal Board had not made an independent assessment of the country conditions of India.

Did the Director and/or the Appeal Board fail to make sufficient inquiry and to provide reasons for their assessment of the relevant country conditions?

38.  I will first consider the Decision of the Director.  Lai, on behalf of the Director, listed 9 sets of materials she had considered and she quoted some 5 extracts therefrom (para 14.41 of the Decision).

39.  The Applicant complained that there were other materials relevant to the corrupt state of the police which were not cited by the Director in its Decision.

40.  Lai, in her affirmation, explained that the materials were voluminous and she only cited the most relevant extracts.

41.  The Applicant also complained that the Director did not give any reasons as to why those extracts (which the Applicant listed in paras 138 and 139 of the Amended Form 86) were left out, or why they were considered not to be “most relevant”.

42.  In my view, the Director only needs to demonstrate that the country condition of India had been adequately considered.  A list of all the materials was provided in the Decision so one can see what materials the Director had perused and considered. The Applicant was legally represented at the hearing and if there were important relevant materials that the Director should take into consideration, the Applicant has the duty to bring them to the attention of the Director. After all, the determination process is one of “joint endeavour”.  I am not impressed with the Applicant’s argument that the failure to list out those extracts referred to by the Applicant in the Form 86 shows that the Director failed to consider the relevant COI materials adequately.

43.  The Director, after referring to the 5 extracts corroborating the Applicant’s claim, went on to cite other extracts which show the existence of improvement.

44.  The Applicant submitted that the Director had not assessed adequately the effectiveness of these measures of improvement and had not explained why the materials showing improvement were preferred over the material showing police corruption.

45.  I do not think it is a matter of the Director preferring certain materials over the others.  The Director has to consider the country condition of India.  Lai, on behalf of the Director, listed out both the materials “for” and “against” the Applicant’s case.  Just because police corruption still exists when the Indian government has implemented ways for its people to seek recourse from the corruption does not mean that the measures are not effective.  It is a matter of degree.  The Director has demonstrated that it had properly assessed the situation.

46.  Coming to the Appeal Board, I have already indicated my view that the failure on the part of the Appeal Board to list out all the materials it had scrutinized is not fatal though it would have been better had such a list be included.

47.  The Appeal Board had clearly stated that it had scrutinized all the materials adduced and the Applicant did not suggest, during the hearing before me, that the Appeal Board had lied about this.

48.  Even though the Appeal Board only cited one source in relation to police corruption, one has to bear in mind that the Appeal Board was merely pointing out that it was in agreement with the Applicant on that score.  The Appeal Board then went on to state “ways to lodge complaints against the Police” (para 83 of the Appeal Board’s Decision), including “toll-free hotline” and “online complaints handling system”, and concluded that “state protection is available and is provided in an effective manner.”

49.  The Applicant complained that the Appeal Board appeared to have failed to notice that date of the materials regarding the complaints against police mechanism predated the material relied on by the Appeal Board concerning police corruption.

50.  I have already expressed my view that the fact that just because police corruption still exists when the Indian government has implemented ways for its people to seek recourse from the corruption does not mean that the measures are not effective, it is a matter of degree.  I am of the view that the Appeal Board had demonstrated that it had already weighed both the materials “for” and “against” the Applicant when it came to the conclusion that there was effective state protection in the case of the Applicant.

Did the Director and/or the Appeal Board fail to consider the failure of state protection to the Applicant?

51.  I have already considered the aspect of COI materials in relation to the country condition of India when dealing with the issue of state protection.  Another area under this heading is “state acquiescence”.

52.  At the hearing before the Director, the Applicant was given ample opportunities to state and clarify his claim.  The Director did not find various aspects of his claim credible (para 13 of the Decision). When assessing the state protection, apart from the COI materials, the Director came to the conclusion that there was no indication of state involvement in what in effect was a private monetary dispute between the Applicant and the Creditor.  The assertion of the Creditor’s influence was found to be unreliable.

53.  Contrary to the Applicant’s submission, I do not find that the Director based its decision on the failure of the Applicant to further pursue its claim – though that was clearly taken into consideration.

54.  As far as the Appeal Board is concerned, the Appeal Board accepted that the Creditor was “a rich and influential person in the Applicant’s locality” (para 67 of the Decision), but found that there was no evidence to show that the Creditor was acting in an official capacity or on behalf of the state.  Again, the Appeal Board had not based its decision solely on any failure on the part of the Applicant to further pursue his complaint against the police.

55.  There was no evidence before the Appeal Board that the “violation of human rights has been existing in India on a massive, gross and flagrant scale”.  On the basis that the Appeal Board did not accept the Applicant’s claim that the Creditor had any connection with the police, its findings that the Applicant was not “personally at risk” even if there was massive, gross and flagrant violation of human rights in India cannot be faulted.

Did the Director and/or the Appeal Board fail to adequately consider whether the “death threats” could amount to mental suffering to fall within the meaning of “torture”?

56.  The Applicant complained that neither the Director nor the Appeal Board explained why the beating which the Applicant experienced during the assault in conjunction with the threats to his life failed to meet the requisite level of severity.  Neither the Director nor the Appeal Board considered if there was any mental torture in the Applicant’s case.

57.  The Applicant was legally represented at the hearing before the Director.  The Applicant concentrated on the physical assault he suffered and did not refer to any mental suffering as a result of the death threat.  If the Applicant had suffered mentally, it is hard to see how that was not raised before the Director.  Without making any assessment on the evidence, one has to bear in mind the relatively minor nature of the assault even if one were to consider whether the death threat would have caused any mental suffering.

58.  Before the Appeal Board, the Applicant did not raise any issue of mental suffering.  One would have expected him do so there had been mental suffering, even when the Applicant was not legally represented before the Appeal Board.

Did the Director and/or the Appeal Board take into account irrelevant matters or fail to take into account relevant matters?

59.  For the reasons I have given earlier under the various topics, I do not find that the Director or the Appeal Board had taken into irrelevant matters or fail to take into account relevant matters.

60.  The Applicant also made a complaint about the way the Director assessed some of the answers given by the Applicant during the interview, suggesting that there was no inconsistency – particularly when the Applicant gave the answers through interpretation.

61.  I have perused the questions and answers and it was correct that the Applicant gave an inconsistent account as to when and where did the meeting between the Creditor on one side, and the Applicant and the Agent on the other side, take place: the “next day” after the threat of breaking his legs or “one month later”?  Did the meeting take place in the “CPM office” or the Creditor’s “club house”?

62.  The emphasis placed by the Director during the interview appears to be more on the “when” than the “where” as the Applicant was given a second chance to clarify after he failed to do so the first time, reiterating that the place was the club house instead of the office (see Records of Interview dated 9 April 2015, Q&A 102-104 and 145).  The Applicant never explained his inconsistent answers as to “when” the meeting took place.

63.  When the Applicant’s claim is largely based on bare assertions, one of the ways the Director could test the Applicant’s credibility and/or reliability is to see if there were different or inconsistent versions given.  The Applicant gave inconsistent versions and he was given the chance to further clarify, but he still failed to do so.  I do not agree that the Director had taken into account irrelevant matters.

Conclusion

64.  For the reasons stated above, I do not find any substance in any of the complaints raised by the Applicant.  I do not agree that the Decisions of the Director and the Appeal Board are Wednesbury unreasonable.

65.  In any event, the finding of both the Director and the Appeal Board on the issue of internal relocation cannot be faulted.

66.  There is no basis for me to grant the application for judicial review to quash either the decision of the Director or the Appeal Board.

67.  The Applicant’s application for judicial review is therefore dismissed.