ROOP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2628/2018

[2022] HKCFI 2111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2628 of 2018

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 To):

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 8 March 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (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  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2].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 57.  He entered Hong Kong on 27 February 2015 and was permitted to remain until 13 March 2015.  He overstayed and surrendered to the authorities on 21 May 2015.  On 23 September 2015, he raised a non-refoulement claim.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  By the Notice dated 8 March 2018, the Director rejected his claims under all four applicable grounds.

5.  He appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 19 November 2018.  On 21 November 2018, he applied for leave to apply for judicial review of the Notice of the Director and the Decision of the Board.  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

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he will be killed by his paternal cousins, Chchinda Singh and Gurmail Singh because of a land dispute.

7.  The Applicant was born and raised in a village in Jeera, Punjab, India.  He has one sister and a brother who has passed away.  He also has two half-brothers and two half-sisters but he did not know much about them.  He is married with three children and his family used to reside in India.  He received formal education and completed class 8 in India.  He has been a farmer for over 30 years.  He, his father and late brother are supporters of the Indian Congress Party.

8.  His father owned a piece of agricultural land in Masoor Deva of about 4 kila in size (the “Land”). His paternal uncle owned an adjacent plot of land of the same size.  They shared the same irrigation motor.  His father passed away in about 2001.  He and his brother inherited the Land.  His cousins inherited the land owned by his paternal uncle after his uncle’s demise.  His cousins are supporters of the Shiromani Akali Dal party and are good friends of a powerful politican Hari Singh who was a member of Akali Dal and the Legislative Assembly of Jeera.

9.  In 2010, his cousins offered to exchange a plot of land some 15 km away for the Land.  The Applicant refused as the land they offered were not fertile and too far away.  Verbal disputes broke out between the Applicant and his brother on one side and his cousins on the other side.  They did not seek help from the authorities as they were scared of their cousin’s political power.

10.  One day in December 2012, the Applicant’s brother was found dead next to the water motor on the Land.  The Applicant suspected the cousins were responsible.   The Applicant, some villagers and the village head made a police report.  The police visited his home a few times but they took no action.

11.  Towards the end of 2013, Chchinda Singh and four men stopped the Applicant from using the irrigation motor and attacked him.  They beat him with baseball bats for about 5 to 7 minutes.  The Applicant was taken to a private clinic to treat his fractured right wrist and an open wound on his right leg.  He took about three months to recover.  He wanted to make a police report but the village head told him not to for fear that it would escalate the problem.  The village head organized a meeting between him and his cousins during which his cousins apologized to him in the presence of the village head, a member of the village committee and some elders in his village.

12.  In early 2014, his cousins harassed him verbally and told him to leave about 5 to 6 times.  Out of fear, he fled to his sister’s home.   He leased half of the Land to other villagers before he left.  The remaining half of the Land was left idled. He stayed with his sister for about nine months and then with his maternal uncle for two months.  His uncle advised him to flee to Hong Kong.

13.  After arriving in Hong Kong, some villagers told him that his cousins were trying to occupy the Land. He learnt from his wife that half of the Land was still leased out while the other half was still left idled.

14.  The Applicant did not believe he would receive state protection because of his cousins’ political connection through Hari Singh.  He claimed that internal relocation would not be viable because with their political connections his cousins will be able to locate him anywhere in India.

The finding of the Board

15.  The Board noted that there were some uncertainties over the Applicant’s ownership in the Land because his evidence was confusing as to whether the Land was given to him and his brother before their father’s death or they inherited the Land under the will of their father free from his step-siblings.  Further, he was not able to locate the land documents or produce evidence of ownership from the Land Titling Authority of India.  These uncertainties cast doubts on the basis of the Applicant’s claim of land dispute.  However, the Board was prepared to proceed on the basis that the Applicant and his brother jointly inherited the Land from their father.

16.  The Board noted that land disputes similar to the one between the Applicant and his cousins were “common in India” but the Country of Origin Information (“COI”) indicate that he could challenge the occupation by his cousins in court.

17.  The Board noted that it would be counterproductive for the cousins to kill the Applicant, as his share of the ownership in the Land would simply pass to his wife and children, while his brother’s share has already passed to his brother’s widow and children. The Board found that the motive for the cousin’s continuous desire to harm the Applicant was “unclear”.  It also queried whether the cousins would have any desire to kill him upon his return, given that the cousins had by the time of the Board’s decision already seized the Land (Paragraph 76 of the Board’s Decision).

18.  The Board rejected the Applicant’s alleged fear of his cousins’ ability to locate him anywhere in India through their political connections as unreal.  It noted, firstly, that Shiromani Alkali Dal was no longer in power and Hari Singh had lost his seat after the 2017 Punjabi elections.  These were “dramatic change[s]” in the Punjabi political landscape and the balance of power there had already changed.  Secondly, the Board noted that contrary to the Applicant’s submission, the local police did appear to have conducted some investigations.  Regardless of any past interference the cousins might have caused, in the post-2017 political landscape, the cousins should not be able to interfere with the justice system or to use their political connections to locate the Applicant.  Thirdly, according to the COI, even the police have difficulties locating people across state borders.  It is difficult to imagine how the Applicant’s cousins could, even with their political connection and willingness of their political associates.

19.  In respect of the Persecution Risk ground, the Board found the Applicant’s alleged land dispute with his cousins was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees or its 1967 Protocol.

20.  As for the BOR 3 Risk ground, the Board found that the Applicant had failed to show that the alleged ill-treatment he would face will attain a minimum level of severity and that he has a genuine and substantial risk of being subjected to torture, cruel, inhuman degrading treatment or punishment, if refouled.  Based on authoritative and credible COI, the Board found there is an appropriate criminal law and justice system in India and that in general the state authorities are able to provide effective protection[7]. There was nothing to indicate that the Applicant would not be afforded the requisite level of protection from the Indian government[8]. 

21.  As for the BOR 2 Risk ground, the Board found that the Applicant had failed to establish that he would be harmed by his cousins if he relocates to elsewhere in India upon his return and that state protection is available to reduce his risks[9].  The Board was not satisfied that there is any real risk that he will be arbitrarily deprived of his life.

22.  As for Torture Risk ground, the Board found there was no reliable evidence to show that the Applicant had suffered physical and/or mental ill-treatment of the requisite severity; that the government and/or state had acquiesced in the claimed ill-treatment of the Applicant; that his cousins ill-treated him with an intention as listed in the definition of torture in section 37U of the Immigration Ordinance; that the claimed ill-treatment had any relevance to the interest and/or to the benefit of the Indian government; and that the state was unwilling to help the Applicant for his claimed risk of harm[10]. 

23.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board concluded that the Applicant had failed to prove his entitlement under any of the applicable grounds.  It therefore confirmed the decision of the Director in the Notice.

The applicable legal principle

24.  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[11].

Grounds of application

25.  The Applicant’s ground for judicial review as stated in his Form 86 are:

(1)   The Applicant believes the Decision was not reasonable and fair;

(2)   The Applicant believes he will be killed if forcefully deported;

(3)   This is clearly a case of unfair attitude shown by the Director which is enough to render the Decision void; and

(4)   “Various human rights organizations have complied reports on the matter which stated testament with the Applicant’s assertions”; “the director has failed to attain the high standard of fairness required by the Wednesbury test”.

26.  The Applicant’s second ground, ie his belief that he will be killed if refouled, is tantamount to a dispute of the Board’s finding of fact which is not permissible unless the finding involves errors of law, procedural unfairness or irrationality.   The overall thrust of the other three grounds is also about unfairness and irrationality, but there is general lack of particulars as to what the alleged unfairness and irrationality are.  The Applicant had been invited by the Court via its letter dated 10 February 2021 to advise the Court of his first language and to file submissions.  He did not respond.  The letter was sent to him at his address as provided by him on 19 June 2019.  It has not been returned through the post.  There was nothing to suggest the Applicant had moved or has not received the letter.  Absent any grounds with sufficient particularity, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision.

Discussion and conclusion

27.  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 four 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.  Despite confusion about the basis of his claim, the Board accepted the Applicant’s evidence in total.  But even on that evidence, it found he had failed to prove the factual basis to support of his case and proceeded to assess his claim on the basis of the case as he alleged.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  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.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  

28.  For the above reasons, the Applicant’s application for leave to apply for judicial review is 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

[1] Section 37ZR of the Immigration Ordinance, Cap. 115

[2] [2018] HKCA 549

[3] 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

[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7] At paragraph 95 of the Decision

[8] At paragraph 85 of the Decision

[9] At paragraphs 95 and 96 of the Decision

[10] At paragraph 98 of the Decision

[11] [2018] HKCA 524 at para 14(1)