VISHWAKARMA RAMESH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL523/2017

[2018] HKCFI 1153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 523 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 arrived in Hong Kong on 23 January 2014 and was permitted to remain here until 6 February 2014.  He overstayed and was arrested by the police on 10 February 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 30 March 2016 and 1 February 2017.  The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 4 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 17 August 2017.  He requested an oral hearing was set down on 11 January 2018 and the applicant appeared in person having had his application for legal aid refused.

2.  The basis of his claim is that he would be harmed or killed by a moneylender called Ganga if he returned to India because he had failed to repay an outstanding loan to him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I will not repeat it here.

3.  The applicant was born in 1983, is married with three children and has worked as a farmer, carpenter and owned his own jewelry store. He borrowed money from Ganga in August 2013 to start his jewelry business.  He borrowed 10 lakhs from him at a monthly interest of Rs. 25,000 before opening a shop at the market about 5 km from his home.  The applicant only paid two months of interest because his business suffered a loss and he was unable to continue repayment.

4.  In October 2013, Ganga and five men carrying hockey sticks came to his shop and demanded he make his repayment is scheduled. The applicant tried to ask for more time but was refused, slapped and hit with hockey sticks.  When neighbours intervened the beating stopped but he was told by Ganga that he would come again.  The applicant received treatment at a government hospital before going home on the same day.  The police would not entertain or register his complaint because Ganga was well-connected to the ruling party leaders and if he made a complaint again then he would be framed for a false case and sent to prison for life.

5.  That same day after he had tried to report the matter to the police, Ganga called him and said that because he had gone to the police he would find him and kill him.  The applicant was so frightened that he left for Delhi the very same day.  He stayed with a friend who advised him to travel to Hong Kong.

6.  The applicant made arrangements to leave India for Hong Kong in January 2014.  His father has told him that Ganga is still looking for him and he cannot come home.  The applicant is sure he cannot relocate internally in India because of Ganga’s good connections politically and his influence with the police would ensure that he could locate the applicant anywhere in India.

7.  The adjudicator, as did the Director, analysed the applicant’s claim under the following applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   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”); and

(c)   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”).

8.  The applicant informed the adjudicator of the TCAB during the appeal hearing that he did not wish to appeal against the Director’s decision of 1 February 2017, this related to his BOR 2 risk claim, see paragraph 53 of the TCAB decision.  Therefore, the adjudicator only considered the above three applicable grounds.  The adjudicator treated the appeal/petition as a rehearing.  An oral hearing was conducted and the applicant elected to answer questions.  The adjudicator correctly set out the law and key legal principles as well as the Country of Origin information (“COI”) that she considered relevant; COI that supported the applicant’s submissions but also supported her ultimate finding that there was State protection available to the applicant if he needed it.  She also considered internal relocation a viable option without undue hardship.

9.  The adjudicator set out the applicant’s evidence and case. She highlighted a number of discrepancies in his evidence that affected his credibility.  Clearly the dispute between the applicant and Ganga was a partnership dispute rather than a moneylending dispute.  The applicant admitted that he had no idea, despite them being childhood friends, what political status or position Ganga held in the ruling party.  This would cast doubt on his claim that Ganga was politically influential and could dictate to the police.  The adjudicator found that the applicant’s claim of risks was exaggerated and his credibility affected by his inconsistencies. She set out what they were that led to her conclusion.

10.  The adjudicator therefore concluded that the applicant was not at any real risk of facing torture as defined and set out in section 37U(1) of the Immigration Ordinance if he returns to India.  There was no evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP therefore, his BOR 3 risk claim failed.  Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did he have a well-founded fear of being persecuted for any of the Refugee Convention grounds; his dispute was a personal and private financial dispute.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed the material, claims and evidence with care.  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.

12.  The grounds in the applicant’s supporting affirmation are not so clearly or coherently set out but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with Country of Origin (“COI”) information.  She cherry picked information that resulted in an unreasonable finding.  She failed to consider whether there is a consistent pattern of human rights abuses in India.

13.  The adjudicator did consider COI information and found State protection did exist and is available.  She set out her findings and references in her decision.  The applicant did not claim there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it.  In any event, since the adjudicator found there to be no torture risk, it was unnecessary to assess State acquiescence or whether India had a consistent pattern of mass violation of human rights.  There are no merits in the grounds highlighted above.

14.  The applicant makes a complaint against the interpreter misinterpreting specifically what the applicant said about his relationship with Ganga and whether the dispute related to a loan or a partnership dispute.  He says the interpreter “did not mention all the things clearly properly”.  However, there are no particulars set out to support this ground.  During the oral hearing the applicant admitted that he did not write his own supporting affirmation.  He said that a friend told him about the interpreter’s misinterpretation.  I then asked him how the author of the statement knew the interpreter had made mistakes during the appeal hearing and he corrected himself by saying that he dictated to the author what to write for grounds of his application.  When pressed how he knew the interpreter in the appeal had made mistakes during the interpretation, the applicant admitted that he did not know.  There is no merit in this ground.

15.  The applicant feels totally aggrieved in his affirmation that his BOR 2 risk claim was rejected by the Director without any interview or consideration of further facts.  He also blames the interpreter again for not properly explaining that his BOR 2 claim had already been refused by the Director and that he could give additional facts to the adjudicator during the appeal hearing.  However, it is clear from paragraph 53 of the TCAB decision that the applicant told the TCAB that he did not wish to appeal against the Further Decision of the Director rejecting his BOR 2 risk claim.  There is no merit in this convoluted and misguided ground.

16.  There are criticisms of the adjudicator’s findings which I will not disturb.  Her findings were given and backed with reasons.  There is new evidence introduced in his affirmation, he says 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.  I would not consider it, even if there were particulars, in application of this nature.

17.  In his last paragraph he accuses the adjudicator of not giving him a chance to provide additional facts but he did say during the hearing that the adjudicator did give him a chance but because he could not return to India he could not obtain any evidence.

18.  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.

19.  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