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

HCAL 445/2019

[2022] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 445 of 2019

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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 May 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated14 January 2019 (the “Decision”).

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2].  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.  The Applicant is an Indian national, now aged 54.  He entered Hong Kong on 30 June 2011 as a visitor and he overstayed.  He was arrested by the police on 28 November 2011.  Then he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 1 December 2011 which was rejected by the Director on 27 June 2012.  That decision became final.  Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By a Notice of Decision dated 18 May 2018, the Director rejected his remaining claims. The Applicant appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision on 14 January 2019.  He now seeks leave to apply for judicial review of that Decision.  That Decision is related to the three remaining grounds only.

4.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.   

6.  The Applicant is married with a daughter and a son who are both living in India. The Applicant and his younger brother own a piece of land of about 2 acres in the Shaheed Bhagat Singh Nagar District which they leased to a tenant in 2006 for 5 years.  The tenant stopped paying rent since 20 October 2010.

7.  The Applicant and his brother demanded rent from the tenant and invited the village council to talk to the tenant on their behalf.  The tenant still refused to pay and continued to occupy the land.  In January 2011, the Applicant and his brother approached the tenant for rent but the tenant responded with a threat to kill both of them.

8.  On 3 April 2011, while the Applicant and his brother were riding on their motorcycle, six to seven unknown men armed with swords and wooden sticks intercepted them and tried to attack them.   The Applicant and his brother managed to escape on their motorcycle without suffering any injury.  They reported to the police the next day but the police took no action because, to the Applicant’s belief, the tenant was connected with the political party, Shiromani Akali Dal, which was the ruling party of Punjab.  The Applicant and his brother decided to flee to a nearby location (about eight to nine kilometres away).

9.  On 7 June 2011, while the Applicant and his brother were riding on their motorcycle near Dughaam Village, four to five unknown men tried to intercept them.  But they managed to drive on and escaped.  On the following day, they made a report to the Garhshankar police station.  The police accepted their complaint but took no action.

10.  The Applicant and his brother went hiding in Delhi for about ten days.  They received unknown calls threatening to kill them.  At the suggestion of their father, they flew to Hong Kong via Macau. 

11.  Even after their departure from India, the Applicant’s father and wife were beaten on 25 March 2012 by people armed with choppers and swords.  They suffered multiple injuries from the attack. 

The finding of the Board

12.  The Board found the Applicant barely made out a very vague case[6]. There was no evidence to suggest that the assailants were sent by the tenant to attack the Applicant and his brother on the two incidents in April and June 2011. When asked during the screening interview what did the assailants say to show their intention to kill them, the Applicant only replied “they threatened to kill us”[7]. He gave no particulars.  He also admitted he had no evidence that the assailants were sent by the tenant[8] or that the police were acting under the influence of the tenant[9].

13.  It is not entirely clear if the Board accepted the Applicant’s evidence.  But it assessed his feared harm and risk on the basis of the case as asserted by him.  It found that the tenant’s intention was to repel any demand for rent with violence.  It found that as the Applicant and his brother had ceased approaching the tenant for rent since 20 October 2010, they should be safe from him[10].  

14.  In respect of the two assaults in April and June 2011, the Board did not believe the tenant needed to send people out to look for the Applicant and his brother as far as Dughaam Village.  It found that what the tenant should do was to sit on the land to wait and see if the Applicant and his brother would come and, if they did, to deal with them there and then[11]. The Board’s observations suggested that it did not believe the Applicant’s evidence and doubted his allegation about the assaults.  It nevertheless proceeded to assess the Applicant’s claims assuming that the assaults took place.  It found that the tenant only wanted to deter the Applicant and his brother from pursuing the rent and should not have any intention to kill them just for the amount of the annual rent.

15.  As for the attack on the Applicant’s father and wife after the Applicant had fled to Hong Kong, the Board found the assault appeared to be totally unnecessary and ineffective for any purpose in connection with the land matter and that the death of the father might be the result of “accident” and not any “intention to kill”[12]. 

16.  The Applicant had no evidence that the tenant was connected to the police or facts on which such inference could be raised.  Hence, the Board rejected the Applicant’s allegation that the police were under the influence of the tenant.  On the basis of the Country of Origin Information (“COI”), the Board found that the police force and law and order of India are functioning effectively[13].   It also rejected the Applicant’s assertion that internal relocation was not a viable option to avoid the risk because of the tenant’s connection with the Shiromani Akali Dal Party as a sheer exaggeration of the tenant’s capability.

17.  The Board then concluded that the Applicant’s fear that the tenant would kill him for his land was based on his bare assertion with nothing to support his claim.  Hence, it found that the Applicant had failed to substantiate that he would face genuine and substantial risk to his life if returned to India.  The Board also found that state protection of an adequate standard is available to minimise or avoid the risk and harm and that the Applicant could also avoid his risk and harm altogether by internal relocation. 

18.  On the basis of these findings, the Board further found that the Applicant’s claim under Persecution Risk ground must failed because the Applicant’s fear of persecution arose out of a private land dispute and was not on account of one or more of the reasons protected by the 1951 Convention relating to the status of Refugees, i.e. for reasons of race, religion, nationality, membership of a particular social group or political opinion.

19.  As for the Applicant’s claim under BOR 3 Risk ground, the Board found that the Applicant had failed to substantiate that he would face a genuine and substantial risk of being subjected to ill-treatment which attains a minimum level of severity, if returned to India. 

20.  In respect of the Applicant’s claim under BOR 2 Risk ground, the Board found the Applicant had failed to substantiate that there was a BOR 2 Risk. 

21.  Accordingly, the Board dismissed his appeal.

The legal principle applicable to judicial review

22.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[14].

Grounds for judicial review

23.  The Applicant did not state any grounds for judicial review in the Form 86 or in his supporting affirmation.  He had been invited by the Court via its letter dated 15 December 2021 to advise the Court of his first language and to file submissions.  He did not respond.  The letter was sent to him by post to his address as stated in his supporting affirmation.  It has not been returned.  There was nothing to suggest he had moved or had not received the letter.

24.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if refouled. 

The Court’s observations on the Board’s finding

25.  With the greatest respect to the Board, its finding is equivocal.  It pointed out the vagueness of the Applicant’s evidence, but did not make any finding if it accepted or rejected his evidence.  Then, it proceeded to assess the Applicant’s claim on the basis of the case as he asserted and concluded that he only made out a very vague case.  It is open to a Board to make a positive finding one way and reach a conclusion; and then proceed on an alternative finding to come, usually, the same conclusion.  But the Board’s position is equivocal.  In the circumstances, it must be assumed in favour of the Applicant that the Board nevertheless accepted, at least, the core the Applicant’s case, i.e. the threat and the two incidents in April and June 2011.

26.  In paragraph 58 of the Decision, the Board held that as the Applicant and his brother had ceased approaching the tenant for rent since 20 October 2010, they should be safe from the tenant.  This secondary finding is rested on a factually incorrect premise because according to the Applicant’s evidence as quoted in paragraph 21 of the Decision, he and his brother demanded rent from the tenant three months later in January 2011 and the tenant responded with a threat to kill them.  Then that threat was followed by the two incidents in April and June 2011.  This is a finding of fact not supported by evidence.  It is a finding made as a result of error of law.

27.  In paragraph 61 of the Decision, the Board considered the Applicant’s evidence about the two incidents.  It said it did not believe the tenant needed to send people out to look for the Applicant and his brother. Whether a person needed to do an act complained of and whether he in fact did the act complained of are two different matters.  The Board was again equivocal.  It then assessed the Applicant’s claims on the basis that the two incidents had indeed taken place.  It inferred from all the circumstances that the tenant’s intention was only to deter the Applicant and his brother from pursuing rent against him.  The reason for drawing the inference was that what the tenant needed to do was to sit and wait for the Applicant and his brother to come.  There was no need to send people to kill them and there was real reason to kill just for the amount of rent in issue.  The Court could find other reasons in support of the inference, but there was no need for the Court to substitute the Board’s reasons by its own.  Suffice it is to say that this is a finding of fact solely for the Board and there is evidence on which the Board could draw such inference.

28.  Having considered the COI, the Board found that state protection of a sufficient standard is available to prevent or minimise the harm and that there are functional legal and judicial machineries to enable the Applicant to enforce his rights to possession of his land.  It rejected the Applicant’s assertion that state protection is unavailable as a sheer exaggeration.  It also found internal relocation a viable alternative to avoid the risk and harm altogether.  These are finding of facts solely within the province of the Board.

29.  The blemish caused by the error of law was cured by the Board’s assessing the Applicant’s claims on the basis of the case as asserted by him and by the finding of availability of state protection and internal relocation.  Looked in the round, despite the blemish, the Board’s finding that the Applicant had failed to substantiate that he would face genuine and substantial risk to his life, if refouled, is unassailable.  It also follows from that finding that the Board’s conclusion that he failed to prove his entitlement to protection under any of the remaining three applicable grounds under the USM is correct.

Conclusion

30.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of his case as asserted by him.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the remaining three applicable grounds.  The Court had rigorously examined the Decision with anxious scrutiny and identified an error of law in one of the Board’s finding of fact.  However, that error was circumvented by the Board assessing the Applicant’s claims on the basis of his case as asserted by him.  The error was not operative.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There is no such vitiating element in the Decision.  The proposed judicial review has no realistic prospect of success. 

31.  For the above reasons, leave to apply for judicial review was refused.

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