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

HCAL666/2017

[2018] HKCFI 1445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 666 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 30 November 2013 and permitted to remain for 14 days.  He overstayed and was arrested by the police on 6 July 2014.  After his arrest he lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 27 June 2016 and 8 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 12 September 2017.  The applicant filed a notice of application for leave to apply for judicial review on 22 September 2017.  He requested an oral hearing and appeared in person on 20 February 2018.

2.  The basis of his claim was that if he were to return to India he would be harmed or even killed by Anand Pal (“AP”) and Manohar Singh (“MS”) because of his affiliation with the Indian National Congress (“INC”).  He has been a supporter since 2003 when he was 18 years old and active in party politics.  AP is a known gangster in the area and a supporter of MS who was the successful candidate in the 2003 Rajasthan assembly constituency elections.  He was a leader of the ruling party and a member of the legislative assembly. Also the applicant comes from the Jat caste who are discriminated against by the Rajput caste as the dominant caste in Rajasthan.  AP and MS were of the Rajput caste.

3.  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.  The applicant’s problems began in September 2011 when he and other INC supporters were preparing for the legislative assembly elections.  The applicant said the election was in December 2011.  MS and many supporters including AP approached the applicant and his group and demanded they stop putting up their banners as it was a Rajput caste area.  They were brandishing wooden sticks.  When the applicant and his group refused they were attacked. The applicant was beaten unconscious and woke up in hospital.  He had to remain there for 10 days.

4.  The second incident happened in February 2012 when AP and men went to the farm of the applicant’s family and threatened him.  They said they would kill him if they saw him again because of his affiliation with the INC.  The applicant was frightened and immediately left for Bangalore which was many thousands of kilometres away and began to work in a granite factory.  After about a year, he met a friend from home who told him that MS had discovered he was in Bangalore and was coming to kill him.

5.  The applicant left for Hyderabad in early 2013 where he stayed for a few months before moving to Delhi in mid-2013.  Whilst in Delhi and in November 2013, the applicant received a phone call from AP who again threatened to kill him.  The applicant felt he had no choice but to leave India and left on 30 November 2013.  He was told by a friend to seek asylum in Hong Kong.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all 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”);

(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”); and

(d)   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”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it.  The applicant adopted his evidence in the appeal bundle and elected to give evidence.

8.  The adjudicator asked the applicant for an explanation about why he said he was campaigning for the 2011 election when the election was in fact in 2013 according to Country of Origin information.  He claimed to have made a mistake when filling out the non-refoulement protection claim form.  It was an Immigration officer who pointed out to him during the screening interview that he had got the dates completely wrong.  The applicant claimed to have forgotten the dates.  However, this seriously affects his credibility and his evidence about what happened after that election and where he lived and worked.

9.  The adjudicator asked him if he came to Hong Kong very soon after the elections in 2013 and he replied “maybe two or three months, maybe years”.  He could not give a satisfactory answer as to whether it was two or three months or years.  Despite his evidence that a friend in Delhi told him to go to Hong Kong to seek asylum he could not give a good explanation why he did not apply for protection when he arrived but only after he was arrested nine months later.

10.  The adjudicator concluded that his evidence that he was first assaulted in September 2011 whilst campaigning for an election that was actually held in 2013 was false.  His evidence that he left home in February 2012 and lived in Bangalore for a year before going to Hyderabad and Delhi and then Hong Kong in November 2013 meant that his evidence he was assaulted when campaigning for forthcoming elections must be untrue.  The fact he did not immediately apply for protection as suggested by his friend in Delhi would suggest he was not in Hong Kong in fear of his life.  This affects his credibility significantly.  Moreover, the adjudicator noted that a large part of his case was based upon hearsay evidence which is not, of itself, it inadmissible but the weight which can be attached to it is greatly reduced.  Hearsay evidence does not prove the truth of facts asserted.  His claimed experiences with regard AP and MS are no more than bare assertions.

11.  The adjudicator concluded that the applicant was not a genuine claimant and he could not prove even to the low standard required that he had suffered any threats or ill-treatment at the hands of the enemies he identified.  The adjudicator found that the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purposes of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

13.  In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the adjudicator explained the process to him and the applicant adopted the appeal bundle.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

14.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  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.

15.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  In any event, in light of his finding the applicant was not a genuine claimant, the adjudicator did not refer to any such information.  I find no merit in this ground.

16.  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.

17.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  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