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

HCAL532/2017

[2018] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 532 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 entered Hong Kong on 9 May 2011 and was permitted to remain for 14 days.  He overstayed, did not leave Hong Kong as required and was arrested by the police on 7 August 2013.  He served a term of imprisonment and then lodged a claim for non-refoulement protection. The Director of Immigration (“the Director”) rejected his claim on 25 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 31 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 21 August 2017 and requested an oral hearing which was set down on 19 January 2018.  The applicant appeared in person having had his application for legal aid refused.

2.  The basis of his claim was that if he was refouled he would be harmed or killed by the president of the SA party, Gurpreet Singh Randhawa and/or SAD members because he was a member of the opposition party the Indian National Congress (“INC”) and had refused their demand to switch allegiance and join the SAD.  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 need summarise it here.

3.  The applicant was born in February 1972, married with two children, worked as an electrician as well as a farmer between 2005 and 2010.  His father was very active in the INC and the applicant became a member in 2007; assisting in electioneering and propaganda work.  In 2007 the applicant was travelling to a voting booth with a group of INC supporters and taking some voters to the voting booth when their bus was intercepted by a group of SAD supporters;  Gurpreet was amongst them.  The voters on the bus were threatened and told to get on another bus to support the SAD.  The applicant intervened and he was told to support the SAD, when he refused he was beaten for a few minutes.  The attackers only left when police arrived at the scene.  The applicant said his hand was fractured and he suffered serious injuries. He had to have an operation on his hand.

4.  The applicant did not report this to the police because he knew that his attacker, Gurpreet had a close relationship with the police.  After this incident the applicant left home and went to live some 250 km away for over two years.  During that time his mother told him that Gurpreet would come to their house looking for the applicant on a regular basis.  In 2009 the applicant saw Gurpreet and two men in his village but was not spotted. He was frightened and left and stayed in Jammu and Kashmir for over 18 months. His family told him that Gurpreet continued to look for him and they knew that he had searched for the applicant in 2009.  The applicant became frightened because he knew it was only a matter of time before Gurpreet found him so he decided to leave India.

5.  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”).

6.  The adjudicator of the TCAB treated the appeal as a rehearing and conducted an oral hearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence and the approach of the TCAB and guidance from authorities when assessing credibility.  The applicant elected not to answer any questions or give evidence in the oral hearing; the adjudicator explained to him the process and said if he had no chance to test the applicant’s claim then he may not believe it.  The only question the applicant elected to answer was when the adjudicator asked him if the fact that his party, INC, had now won power in Punjab, would that make a difference to his claim.

7.  He assessed the applicant’s evidence and set out the questions he would have asked the applicant if he had elected to give evidence.  The adjudicator clearly needed discrepancies explained and more detail in order to assess his claim.  He set out those discrepancies in his decision.  He was unable to make an assessment, save on the face of the material previously presented to the Director.  The adjudicator believed his decision not to give evidence was an indication to him that the applicant’s initial claims were rehearsed and he could not maintain the facade in the face of questioning.

8.  It was also highly significant that the applicant lived in Hong Kong illegally for over two years before lodging a claim; it was only lodged after he was arrested.  The adjudicator made a finding that nothing the applicant had claimed could be relied on, not even the centrepiece of his claim could be regarded as reliable.  He did not believe he was a genuine claimant.  The adjudicator did add that if he was wrong in his assessment, one event of past harm in 2007, followed by the applicant’s ability to live completely unharmed in India for four years after that could not amount to a real risk of him experiencing persecution and/or torture and/or CIDTP if refouled.

9.  The adjudicator rejected all of his claims as his evidence was not credible.  He found 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 purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.  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; he analyse the evidence and claim carefully.  He gave full reasons for his decision and findings.  The applicant grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

11.  The applicant’s supporting affirmation accuses the adjudicator of procedural impropriety and making errors of law.  In the first ground he accuses the adjudicator of failing to carry out sufficient research into the Country of Origin (“COI”) information and cherry picking from that information to support his decision.  He failed to consider the applicant’s submission of corrupt police and their unwillingness to help him without being paid a bribe.  The applicant submits that real-life in India does not mirror the COI information.  In the second ground he accuses the adjudicator of making an error in law, failing to consider the concept of extended State acquiescence.  He also failed to consider whether there was a consistent pattern of gross, flagrant human rights abuses.

12.  There are no merits in the above grounds.  The adjudicator did not actually consider any COI information in light of his finding that the applicant was not a genuine claimant and his evidence was not credible.  Whether or not the applicant reported the assault to the police required an explanation that was not forthcoming.  In his evidence to the Director he had said he did not report the assault to the police and then contradicted himself later.  In view of the adjudicator’s findings there was no need for him to consider State acquiescence or whether there was a pattern of human rights abuses in India that affected the applicant personally.

13.  There is another ground which is directed at the Director when he is not a proposed respondent.  The applicant submits it was unfair that his BOR 2 risk claim was refused without any interview or consideration of his further facts and grounds.  During the oral hearing the applicant told this court that he did not receive any letter inviting him to submit information to support a BOR 2 claim.  However, this ground and information is misleading when his BOR 2 risk claim was considered by the Director at the same time as the other grounds and all were rejected on the same date.  There was no separate consideration of a BOR 2 risk claim.

14.  The applicant attempts to submit new evidence in his affirmation which was not considered by the adjudicator.  He says that he has been dragged into false criminal cases by his enemies and the police are looking for him.  There are no further particulars and in any event, new evidence is not to be considered in an application of this nature.  The applicant said during the hearing that his enemies were still looking for him, his life was still in danger and they were torturing his family.  He needed more time to solve his problems.  This allegation that his enemies were torturing his family is new and was not considered by the adjudicator.

15.  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.

16.  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