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Kamal Kumar v Torture Claims Appeal Board

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date16 November 2018
Neutral Citation[2018] HKCA 833
Year2018
Judgement NumberCACV363/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV363/2018 KAMAL KUMAR v. TORTURE CLAIMS APPEAL BOARD

CACV 363/2018

[2018] HKCA 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 363 OF 2018

(ON APPEAL FROM HCAL 657/2017)

_______________

BETWEEN
KAMAL KUMAR Applicant
and
TORTURE CLAIMS APPEAL BOARD Putative Respondent
and
DIRECTOR OF IMMIGRATION Putative Interested Party

_______________

Before: Hon Cheung and Pang JJA in Court
Date of Judgment: 16 November 2018

_______________

J U D G M E N T

_______________

Hon Pang JA (giving the Judgment of the Court) :

INTRODUCTION

1. This is an appeal against the decision of Deputy High Court Judge Woodcock, given on 25 July 2018, by which she refused leave to the applicant to apply for judicial review (‘the Judge’ and ‘the Judge’s Decision’).

2. The applicant having failed to file his skeleton arguments according to the directions of the Registrar of Civil Appeal, the same directions having been made clear in a letter to the applicant dated 4 September 2018, the hearing date of this appeal, namely 13 November 2018, was vacated and this Court will consider the appeal on paper.

BACKGROUND

3. The applicant is an India national who allegedly entered Hong Kong by ferry from Macau on 26 February 2014, and who lodged his non-refoulement claim form (‘NCF’) on 15 April 2014.

4. The basis of the applicant’s claim is that, if he were to return to India, he would be harmed or even killed by a police officer, Gurbachan Singh (‘GS’) because he is unable to repay the compensation demanded by GS for his son, Balwinder Singh (‘BS’), who lost his leg in a traffic accident in which the applicant was involved.

5. The relevant facts as alleged by the applicant can be summarized as follows :

The applicant was driving his taxi home. He injured BS. GS assaulted the applicant and demanded compensation from him. GS also took the applicant to a police station to make a report on him. Whilst in custody, the applicant was assaulted by the local police. Even upon release, he continued to be threatened by GS. The applicant tried to report GS but the police told him to go away. On one occasion, the applicant took a blow from GS on the head, fainted and had his taxi taken away. On another occasion, whilst he was driving home, the applicant was chased by, and shot at, by people on a number of motorcycles. The applicant’s vehicle fell into a ditch and, for a period, he was hospitalized. The applicant was undisturbed by GS during his hospitalization, and the time when he was recovering at home. The applicant relocated to a different place, and undertook a new driving job, only later to encounter two men approaching him asking him if he knew the person in a photograph. The person was the applicant without the beard he was then wearing. The applicant decided to flee to Hong Kong.

On 5 November 2015, at the conclusion of the evidence before the Torture Claims Appeal Board (see later), when he was asked if he had anything to add, the applicant alleged for the first time that his brother had been killed by people seeking the applicant’s whereabouts.

THE DIRECTOR’S DECISIONS

6. The Director of Immigration decided against the applicant’s torture claim on 12 September 2014 (‘the Director’ and ‘the Director’s Decision). The decision covered the applicant’s right under Article 3 (right against torture and cruel and inhuman treatment) under the Bill of Rights and other statutory and convention rights against torture and persecution.

7. By a further decision dated 12 January 2017, the Director decided against the applicant regarding his right under Article 2 (right to life) of the Bill of Rights (‘the Director’s Further Decision’).

THE BOARD’S DECISION

8. The applicant appealed the Director’s Decision to the Torture Claims Appeal Board which, after holding three hearings on 31 August 2015, 7 September 2015 and 5 November 2015, dismissed the applicant’s appeal on 19 August 2016 (‘the Board’ and ‘the Board’s Decision’). [We note in the Appeal Bundle filed by the applicant a decision of the Board dated 25 March 2017. Although the name of the applicant in that decision was the same as the applicant in this appeal, that decision clearly was in respect of another case. The correct Board’s Decision of 19 August 2016 was, however, before the Judge which we were able to read from the file in HCL 657/2017.]

9. The Board’s Decision essentially held that the applicant lacked credibility and that internal relocation within India was possible. The Board observed that there were significant differences between the contents of a written representation that was signed by him with the assistance of his lawyers and the later accounts of events that were given by him. Instead of GS threatening and demanding repayment from the applicant, the applicant said it was BS who was threatening and demanding repayment from him. There was also a discrepancy in the amount demanded. There was no mention of the police assaulting him. There was no mention of his taxi being stolen. There was inconsistency in the number of shots fired at him while he was being chased by people on motorcycles. More significantly, whilst the applicant had said that he lost control of his car and fell into a ditch, his other version was that he did not lose control and he managed to escape driving his taxi. Although the applicant claimed that his statement prepared by his lawyer was “rushed”, the Board...

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