S v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 160/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 160 of 2016

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REASONS FOR JUDGMENT

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1.  The Applicant filed a non-refoulement claim under the Unified Screening Mechanism (USM) on 22 March 2014. His basis is that he will be harmed or killed by his former girlfriend’s (Rabina) brother and father if he is returned to India as attempted to elope with their sister/daughter.

2.  The application was refused by both the Director of Immigration (Director’s Decision) on 4 August 2014 and by the Adjudicator on 17 August 2016 (the Adjudicator’s decision). 

3.  On 2 September 2016 he applied for leave to judicially review the decision by the Director and the Adjudicator.

4.  The Applicant requested an oral hearing.  A hearing was initially listed on 20 December 2016 however the Applicant applied for and was granted an adjournment.  The re-fixed hearing date was set down for 28 April 2017.  The Applicant was absent from the hearing. 

5.  Despite the Applicant’s absence, I have considered the application.  I have perused the documents in support of the application including inter-alia the above two decisions, the relief sought and the grounds relied on by the Applicant.  Having considered the merits of the application, the application for an extension of time to judicial review the Director’s decision and leave to judicial review the Adjudicator’s Decision are refused. 

The Applicant’s case

6.  The Applicant is an Indian national. He was born in Khiddipore, Ekbalpor, Kolkatta on 17 July 1988.  He attended a local primary school and received seven years of education.

7.  After completing his studies, the Applicant worked as a salesman earning 100 to 200 Rupees per day as commission.

8.  In 2010, he met, fell in love with and started a relationship with Rabina who was the daughter of Hashimi who is a senior member of the Indian National Congress Party (INC).  The INC paid for Hashimi’s livelihood.

9.  In early 2012, Rabina and the Applicant decided to get married.  The Applicant’s parents sent a proposal to Rabina’s parents, however her family said she had tuberculosis and did not want her to marry for the time being. The Applicant and Rabina were extremely disappointed. They decided to elope to Mumbai.  However, they eventually did not go to Mumbai and decided to stay in Kolkata and get married in Bari Masjid which was the Chief Mosque.

10.  When the Applicant was waiting at the mosque his sister arrived with seven police officers. It was at that time that he realized that his sister was against his marriage.  Rabina and the Applicant were taken to the Ekbalpore police station.  On learning of Rabina’s identity their respective families were asked to take them home. No charges were laid.

11.  The Applicant’s case is that after the attempted elopement there were violent attacks, criminal intimidation and extra judicial killings made against him by Rabina’s brother Safique and Hashimi her father. 

12.  There were three specific incidents referred to by the Applicant. 

The first incident

13.  Three days after the attempted elopement the Applicant approached Rabina at her house and conversed with her through the window.  Rabina told him to leave as her brother and father had seen him.

14.  However, before he had time to leave, the brother Safique and 20-25 persons took him to an alley and beat him intermittently for 30 minutes. In the meantime, Hashimi was observing the incident from a distance.  The attack was only stopped as the neighbors passing by persuaded the attackers to let the Applicant go.  He felt sick with bruises all over his body but had no open wounds.

15.  The Applicant’s parents took him to the hospital where he was treated with an injection, medicine and an intravenous drip for internal injuries. He was discharged after four days. He did not need follow-up treatment. He was given some medicine and advised to take bed rest.

16.  On the way to the hospital a report was made at the Ekbalpore Police Station against the brother and father of Rabina.

The second incident

17.  A month later in April 2012, the Applicant was waiting for his friend on a street close to Rabina’s house.  Since he had no contact with Rabina for one month he thought he could safely wait there.  However, Safique and 15 to 20 other persons came to kick and punch him for about 15 minutes until some passersby intervened. Safique threatened to kill the Applicant should he go there again. The Applicant sustained bruises but did not seek medical treatment.  He used the medicine obtained after the first incident. He rested at home and recovered after a few days.

18.  As the police had taken no action after his previous report he did not report this incident to the police. He believed that no action was taken by the police because INC was then the ruling party in India.

19.  The Applicant’s father wrote a letter to the chief minister of the state that no action was taken after the Applicant had filed a case to the police but there was no response.

The third incident

20.  Ten days after the second incident the Applicant received a phone call and was asked by a stranger for his whereabouts.  Without thinking it out thoroughly the Applicant told him his location.  Around 15 minutes later Safique went there with 7 to 8 friends saying they would abduct and finish him up.  The Applicant’s friends came to rescue him on hearing his shouts for help. His friends threatened Safique and his friends’ with serious consequences should they bother the Applicant further.  Safique and his friends promised not to hurt the Applicant anymore.

21.  Since the third incident the Applicant was living in fear.  In March 2012 he stopped contacting Rabina because he was angry with her for not supporting and assisting him in the incidents.  He decided to leave India.

22.  A travel agent told him he could go to Hong Kong to seek protection.  To enhance his chance of obtaining a visa on arrival in Hong Kong the Applicant went to China in July and August 2012.

23.  On returning to India, Khiddipore, the Applicant’s friend told him that Rabina’s brother and father were looking for him.  In order to stay away from them the Applicant moved to Mumbai to stay with his mother’s cousin in September 2012.

24.  A marriage was arranged by his friend between the Applicant and a girl named Ali in early 2013.  The Applicant thought this would put him out of harms way, however the Applicant’s friends told him that Rabina’s father and brother was still angry with him for his attempted elopement with Rabina which humiliated the family and they were still looking for him.

25.  In mid-2013 some people claiming to be friends of Rabina’s brother went to Mumbai to ask about the Applicant but left when they found he was away.  In December 2013 Safique and his friends went to look for the Applicant however the Applicant ran away when he saw Safique.

Flight from India to Hong Kong

26.  On his family’s suggestion, the Applicant left India on 20 March 2014.  He arrived in Hong Kong by air on 21 March 2014.  He was refused permission to land in Hong Kong.  The Applicant then raised a non-refoulement claim.  He was detained in CIC from 24 March 2014 and was released on recognizance on 17 September 2014.

27.  It is the Applicant’s case that despite his marriage to another girl and his move to Mumbai this did not abate the intentions of Hashimi and Safique from looking for him to avenge the humiliation of the attempted elopement caused.  He considered that State protection was not available to him and claimed that he would be killed or subjected to torture or cruel, inhuman or degrading treatment or punishment (CIDTP) by Hashimi or Safique if he returned to India. 

Findings made by the Director and Adjudicator

28.  The Adjudicator gave reasons why she refused the Applicant’s claim. 

29.  The Applicant’s non-refoulement claim was assessed under the Unified Screening Mechanism on all applicable grounds which were:

(1) risk of torture under Part VIIC of the Immigration Ordinance Cap 115, (torture risk);

(2) risk of torture or CIDTP under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 363 (BOR risk claim) and

(3) 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). 

30.  The Adjudicator found in the first incident the beating was a warning to stay away from Rabina.  There were no weapons involved. There was no permanent injury and thus they had not sought to kill the Applicant.  In the second incident there was no intention to kill him either.   As for the third incident the Applicant suffered no physical injury. 

31.  The Adjudicator found that the harm inflicted on the Applicant was not intentionally inflicted for any of the purposes listed in the definition of torture that is to obtain information or a confession, to punish, to intimidate or coerce, or to discriminate against a person.  

32.  Under the torture risk the Applicant had not been subjected to torture. The Adjudicator found there was insufficient or no evidence to show that the harm caused by Hashimi or Safique was by them acting in an official capacity or on behalf of the State or under the direction or control of the State in anyway otherwise than in their private capacities as the father and brother of Rabina bent on preventing the Applicant from approaching Rabina further.  It was held given that the risk arose from the Applicant’s failed elopement attempt, which was a private matter, the harm inflicted by Hashimi and Safique, and were non-state agents.  There was no risk of torture if the Applicant returned to India.

33.  The Adjudicator found that the harm suffered by the Applicant was not injury which would place him within the criteria of CIDTP.  He did not face a genuine and substantial risk of being subjected to torture or CIDTP if he were returned to India.  There was the availability of State protection and internal relocation options to reduce any risk of the Applicant being subjected to ill-treatment.

34.  The Adjudicator found that the suffering did not amount to torture or CIDTP. 

35.  The Adjudicator found there was no persecution risk as the Applicant is an Indian national and the dispute was a purely private one.  The ill-treatment or persecution he feared was not on account of race, religion, nationality, membership of a particular social group or political opinion.

36.  The Adjudicator found there was no state involvement.  The Applicant had been able to depart from India using his own passport on several occasions without hindrance.  The state clearly had no interest in him nor did the INC have any interest in him.  The influence of Hashimi and Safique was localized and was not as extensive at the Applicant believed and in any event did not extend beyond their immediate vicinity.  The Applicant was an able-bodied young man with 7 years of education he could speak Bengali and Hindi.  He used to be a garment salesman.  Internal relocation to another area of India is viable. 

37.  The Adjudicator found the Applicant had not substantiated the case under any of the applicable grounds under the USM. 

The law

38.  It is trite law that judicial review is not a further appeal to determine the merits of the claimant’s failed non-refoulement claim or sit on appeal.  

39.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success. Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.

40.  The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Adjudicator in dismissing the Applicant’s claim:-

(a) made any error of law,

(b) handled the claim without compliance with the high standard of fairness as required by the law and

(c) whether the substantive decision satisfied the enhanced Wednesbury test.

41.  The enhanced Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Prabakar, §45; AM v Director of Immigration, §34.

Leave to apply for judicial review against the Director's Decision

42.  The Director’s Decision was given on 4 August 2014.  The Form 86 was filed on 2 September 2016.  There is a long delay of some 22 months.  That is well beyond the upper limit of 3 months for applying for leave provide under Order 53, rule 4(1) of the Rules of the High Court.  The Applicant has given no explanation for the delay.

43.  A person has to exhaust alternative remedies to seek judicial review see: Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27.

44.  The Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“TCAB”).  He has already resorted to the alternative remedy. 

45.  The appeal to the TCABis a determination of a petition by the Adjudicator involving a rehearing of the matter determined by the Director below.  AM v Director of Immigration & anor [2014] 1 HKC 416 at §28, McWalters J (as he then was).  It requires a fresh and independent decision of the claim by the Adjudicator: X v TCAB & anor, HCAL 143/2013, 4 September 2014, Zervos J, §29. The Adjudicator of TCAB does not discharge an appellate role.

46.  The grounds save for ground 6 relied upon by the Applicant in this leave application have been considered by the Adjudicator.  

47.  Having considered the application, I see no reason for extending time for the Applicant to apply for judicial review of the Director's Decision.

Merits of application

48.  I turn to deal with the merits of the application.  The grounds for leave are set out at pages 15 to 19 of the affirmation.

49.  Grounds 1, 2 and 4 on procedural impropriety or unfairness and irrationality are related.  Failure to carry out sufficient enquiries into the country of origin conditions (COI) and to place any weight on the relevant COI research and cherry picking and putting weight on the COI of little or no relevance. 

50.  Ground 4 claims that the Adjudicator failed to analyze and assess whether state protection exists in India under the extended meaning namely whether the state had exercised due diligence or sufficient due diligence.  

51.  There is no basis to say that the Adjudicator failed to carry out sufficient enquiry into the matter and that she failed to give sufficient weight to the application of the extended concept of state acquiescence.  It is clear that the Adjudicator did make sufficient enquiries into the COI and placed weight on the relevant conditions in paragraphs 82 to 102 of her decision.  She also analysed and assessed whether state protection exists in India.  Grounds 1, 2 and 4 fails. 

52.  Ground 3 claims that the Adjudicator failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of CAT; and so her decision was unreasonable.

53.  According to ST v Betty Kwan & anor [2013] 3 HKC 87, Court of Appeal, §37(2):

“The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

54.  The Adjudicator was not satisfied that Hashimi and Safique were acting in any official capacity.  She found that it was the bare assertion that Hashimi is a powerful and influential leader of INC in Khiddipore.  She found that there was no evidence as to what position Hashimi enjoyed in INC and next to no evidence about Safique other than he worked in an office and had friends who beat the Applicant twice.  She found that there was no evidence that INC had a part in any of these incidents.  She found that even if the risk arose from his failed elopement attempt this was a private matter the harm inflicted by Hashimi and Safique who were non-state agents did not constitute ill-treatment under Article 3.  There was therefore no duty on the Adjudicator to proceed a step further to consider the pattern of violation of human rights.  Ground 3 fails.

55.  Ground 5- Irrationality.  This ground claims that the Adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts and failed to take into account and put weight on facts and inferences that were favourable to the Applicant.  As a consequence the Adjudicator arrived at a Decision that was unreasonable.

56.  This ground contains no particulars and is unsubstantiated.

57.  Ground 6 – Failure to call for psychological and psychiatric evaluation and reports at any stage of the screening or by the Adjudicator at the appeal stage.

58.  It is not clear on what basis the Applicant is relying upon but it is important to note that he never complained of any mental anxiety.  His evidence focused on the physical beatings he suffered.  Although from his case he did say that Safique threatened to kill him.  No evidence or allegation was put before the Director or the Adjudicator that he suffered mentally.  The fact that he was able to marry, live in Mumbai, travel to Hong Kong and continue to work does not support any claim if there is one that he has, any mental suffering. There was no basis nor requirement for the Adjudicator to call for psychological and psychiatric evaluations or reports at any stage of the screening or at the appeal stage.  Ground 6 has no merits.

59.  Ground 7 – Failure of the Adjudicator to apply the correct standard of proof.

60.  The Adjudicator considered the essential issues of torture risk, BOR risk and persecution risk.  The Adjudicator correctly set out the laws relating to the three grounds.  The standard of proof was correctly applied and set out in paragraph 16- 18, 20, 22 and 24 of the Decision.  This ground has no merit.

61.  Ground 8 – Procedural impropriety.  Failure at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.

62.  The same duty lawyer represented the Applicant before the Director and the Adjudicator.  There are no particulars given of the alleged failures of the duty lawyer and how legal representation was insufficient.  This ground is unsubstantiated.  

63.  The remaining ground was the right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights Ordinance.  In practice, the right to life is mainly protected from the criminal law (murder and manslaughter).  The right to life must be protected from extra judicial killings such as the Applicant would face if he were deported to India into the murderous reach of his enemies.

64.  The Adjudicator found that the Applicant had failed to establish personal risk or a real chance of sufficiently serious harm at the hands of Hashimi and Safique, there is no arguable basis for such intended ground.

Conclusion

65.  The Adjudicator carefully considered and properly examined the Applicant’s case.  The Applicant has not shown that he has a reasonably arguable claim which enjoys a realistic prospect of success. 

66.  Leave for judicial review is refused.