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

HCAL 2282/2018

[2021] HKCFI 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2282 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:

Introduction

1.  The Applicant is an Indian national from the state of Punjab.  He arrived in Hong Kong on 22 December 2013 and returned again on 27 December 2013.  He became an over-stayer since 11 January 2014.  On 18 February 2016, he surrendered to the Immigration Department.  He was released on recognizance since 21 June 2016.

2.  He first made non-refoulement claims by written representation on 28 July 2016 based on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(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 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”) (“BOR 3 Risk”);

(c)  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 (“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 of ICCPR (“BOR 2 Risk”).

3.  By a Notice of Decision dated 9 February 2018, the Director refused his application for non-refoulement protection (the “Notice”).  On 22 February 2018, he appealed to the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”).  The Board dismissed his appeal on 9 October 2018 (the “Decision”).  On 19 October 2018, he applied for judicial review of the Notice of the Director and the Decision of the Board. 

The Applicant’s case

4.  The Applicant was born in Village Bhaini Bangar, District Gurdaspur, Tehsil Batala, Punjab, India.  He is now single and aged 28. His parents and two sisters are living in India.  He belongs to Jatt Sikh ethnic group.  He received education up to High School Class 12.  From 2009 to 2012, he worked as a farmer.

5.  In early 2012, the Applicant’s grandfather passed away leaving a piece of land (the “Land”) to his father. His father intended to transfer the ownership of the Land to him as he is the only son of the family. 

6.  Adjacent to the Land is another piece of farmland belonging to Balkar Singh (“Balkar”) who lived near the Applicant’s village.  The two pieces of land share common boundaries for many years.  Balkar knew the Applicant was the only person looking after the Land and was going to obtain ownership of the Land.  He wanted to take the Land from the Applicant.  Balkar is a member of Akali Dal (“SAD”) and Bharatiya Janata Party (“BJP”) and had a close connection with Kamal Jyoti (“Kamal”) who was a member of SAD and BJP, as well as the chairman of BJP for a few villages.  Kamal was powerful and influential.

7.  Since April or May 2012, Balkar started to plant his crops on the Land without the consent of the Applicant’s father.  The Applicant argued with Balkar, but Balkar ignored him. He dared not to take action against Balkar because of his close connection with Kamal.

8.  In December 2012, the Applicant was informed by a village that the crops on the Land were damaged by people running a truck over them.  He went to the Land to see what had happened and was assaulted by Balkar’s men with a steel rod.  Some neighbouring farmers came over.  Balkar and his men left.  The Applicant’s left leg was injured and bled.  He was hospitalised for one night and it took him about one week to recover.

9.  The Applicant’s father reported to the Qudian Police Station.  The police took no action.  The Applicant and his father sought assistance from the village council, but the council declined to help.  The Applicant believed it was because the council knew Balkar was a member of SAD and BJP and had close connection with Kamal who was powerful and influential.

10.  One day in June 2013, while riding on his motorcycle, the Applicant was hit by a motor vehicle belonging to Balkar.  He suffered injury in his left eye and right middle finger.  He was hospitalized for two days and received four to five stitches on his left eye and a plaster on his finger.  It took him about a month to recover.  After he was discharged from hospital, he went to his aunt’s place in Jalandhar City and stayed for six months.  In the meantime, Balkar had been looking for him at his home.

11.  In the beginning of December 2013, Balkar and his men called the Applicant’s family and said they knew his whereabouts and threaten to kill him whenever they saw him.  The Applicant was afraid and fled to Hong Kong.

12.  The Applicant was informed by his father that his cousin was killed while riding a motorcycle by a truck near the Applicant’s home in May 2017.  He believed that his cousin was murdered on Balkar’s instruction for helping his father to take care of the Land since the Applicant fled to Hong Kong.

The Director’s Notice of Decision

13.  The Director fully noted the Applicant’s case but disbelieved him.  Simply put, the Director considered his fear and risk were not real and there was no factual basis to support his claim for non-refoulement protection under any applicable grounds. The Director further found from the Country of Origin Information (“COI”) that internal relocation is a viable option and even if the fear and risk were real, the Applicant could avoid the risk by internal relocation.

14.  In his Notice of Appeal to the Board, the Applicant basically challenged the factual finding of the Director.

The finding of the Board

15.  The Applicant’s claim for non-refoulement protection is premised on his fear of being killed by Balkar because Balkar wanted to covet his father’s Land which was going to be transferred to him.  His factual case is built on the assault on him by Balkar’s men in December 2012; the hit on his motorcycle in June 2013; the threat uttered to his family in December 2013 and the murder of his cousin in May 2017.

16.  The Board conducted an oral hearing and treated the appeal as a rehearing.  It correctly set out the law and key legal principles applicable to the four grounds.  It set out the Applicant’s evidence fully and assessed its inherent credibility.  On the totality of the evidence, it found the Applicant’s case not credible and nonsensical. The Board gave full reasons for its conclusion and set out the inherent incredibility of the Applicant’s case.  In particular, the Board pointed out why Balkar would target him and not his father who is the owner of the Land; and that even if Balkar killed the Applicant, his father is still the registered owner of the Land.  Having considered the COI, the Board also concluded that even if the fear and risk were genuine, the Applicant could relocate himself elsewhere in India to avoid the risk.  As a result of the Board’s finding, the Board concluded that the Applicant’s fear and risk are not genuine and that he was unsuccessful in showing he was entitled to protection under any of the four applicable grounds.  The Board confirmed the Decision of the Director contained in the Notice.

The applicable legal principle for judicial review; grounds for judicial review

17.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office.  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 scrutinise 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 [2018] HKCA 524 at [14(1)].

18.  The Applicant’s grounds for leave to apply for judicial review may be summarized as follow:

(a)  the Director’s Notice and the Board’s Decision are Wednesbury unreasonable and unfair;

(b)  the Board did not give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim and his appeal;

(c)  the Director failed in giving proper weight to his evidence about state acquiescence;

(d)  the Director failed to give proper weight to the COI in his favour; and

(e)  the Director showed an unfair attitude and failed to attain the high standard of fairness required by the Wednesbury test.

19.  The Applicant seeks judicial review of both the Notice of the Director and the Decision of the Board.  His grounds of appeal are directed more at the Director than the Board.  Presumably, he does not appreciate the distinction between the two identities.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there is an established system of appeal to the Board.  I shall treat his grounds as directed at the Board.  In any event, it makes no difference because the Board confirmed the decision of the Director in the Notice.

Ground 2

20.  It is convenient to begin with Ground 2.  Under this ground, the Applicant complained about not being given sufficient time and chance to arrange relevant evidence relating to his non-refoulement claim and his appeal.  I assume the former referred to the claim before the Director and the latter to the appeal before the Board.

21.  The Applicant came to Hong Kong twice in December 2013.  He might not have armed himself with the necessary evidence in support of his case before he left India.  But, he waited for two and half years before he lodged his claim for non-refoulement protection on 28 July 2016.  He lodged his Non-refoulement Claim Form on 10 January 2018.  In between, he had one and half years to prepare his case and collate his evidence.  He attended his screening interview on 25 January 2018. If he had other evidence to present, he could have told the interviewing officer.  He did not.  Now, three years later, he complained he was not given enough time to prepare his evidence to support his claim.  He gave no particulars of what evidence he could have advanced, had he been given more time.  This does not appear to me to be a genuine ground. 

22.  His complaint about not being given enough time to arrange the relevant evidence before the Board is more ridiculous.  He received the Director’s Notice rejecting his claim for non-refoulement protection on 9 February 2018 and was informed of the process of appeal.  He lodged his Notice of Appeal setting out his grounds of appeal on 22 February 2018.  He reiterated his fear and risk and corruption in India.  He never complained he did not have time to prepare the evidence before the Director’s screening interview.  He never requested for time to arrange for the relevant evidence to be presented to the Board for the hearing of his appeal against the Notice.  He actually wrote:

“I will give you some documents that will prove my case is real.”

He did not say what those documents were.  That assertion suggests he actually had the documents.  The oral hearing before the Board was held on 20 August 2018.  He only had himself to blame for not presenting them before the Board.  Then, ten days after receiving the Decision of the Board, he complained about insufficient time.  Even now, he did not say what those documents were. This ground does not appear to me to be genuine. 

Grounds (3) and (4)

23.  These two grounds may be dealt with together. In essence, he complains that the Board or the Director erred in not giving more weight to the COI in support of his allegation about police corruption, susceptibility of police to political influence and therefore unavailability of state protection and ineffectiveness of internal relocation.  The weight to be attached to any piece of evidence is a matter for the tribunal of fact, ie the Board.  It has to be assessed on the totality of the evidence.  Unless it can be shown that no reasonable tribunal would have made such a finding, the court will not intervene.

24.  The Director referred to 14 items of COI, including Country Reports on Human Rights Practices published by the United States Department of State for the year 2013 when the alleged threats were made and for the year 2016 as an update should the Applicant return to India.  They provided information about police corruption and government’s effort in combating the problem; availability of avenues for complaint; arrests of senior government officials for corruption etc.  There are 5 items of COI about internal relocation, including Country Information and Guidance – India: Background information, including actors of protection, and internal relocation published by the United Kingdom Home Office. 

25.  The Board had referred to these COIs.  In paragraph 50 of its Decision, in relation to police corruption, susceptibility of police to political influence, unavailability of state protection, the Board said:

“While it is true that as revealed in the country of origin information of India, corruption is not uncommon amongst the police force as well as other government officials, it is also true that there have been reforms going on in India to improve the efficiency on the one hand and to combat corruption on the other hand of the police force. In any event, evidence suggested that the police did agree to look into the complaint by the Appellant’s father, just that there was no obvious result of their investigation.”

Clearly, the Board appreciated the conflicting COIs and made its assessment on the weight to be attached to them on the totality of the evidence and reached the conclusion that police protection is available.

26.  In paragraphs 58 to 61, the Board considered the COIs relating to internal relocation.  Then, having regard to the age and education level of the Applicant, the Board held that the Applicant should have lots of opportunities to find a job in another city in India, for example, New Delhi, the state capital or Mumbai, the largest city in India.  Again, obviously the Board had considered the relevant information about internal relocation and the Applicant’s background to reach the above conclusion.  That conclusion is of course premised on the Board’s finding that police protection is available; that the risk of Balkar’s influence on the police through SAD and BJP is non-existent or low.

27.  These are finding of facts by the Board.  There is nothing to suggest that the Board erred in law or was guilty of procedural unfairness or was unreasonable in coming to these findings.  These grounds for review therefore fail.

Grounds (1) and (5)

28.  These two grounds are duplicitous.  The Applicant complained that the Board’s Decision was Wednesbury unreasonable and unfair.  But he gave no particulars.  The best approach would be to bear this complaint in mind while assessing his other grounds and then in the end come to a view if the Board’s Decision is indeed Wednesbury unreasonable and unfair. Having considered the other four grounds, this court is unable to come to any view that the Decision was Wednesbury unreasonable and unfair.

Conclusion

29.  The function of the in judicial review is not to re-assess the non-refoulement claim afresh.  This court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  I have considered the Board’s Decision, the papers, grounds of application and the Applicant’s submissions with rigorous examination and anxious scrutiny.  The Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The Board took great care in analyzing the evidence.  It set out its reasons why it considered the Applicant not credible in ten pages.  It concluded that there was no factual basis to support the Applicant’s claim of fear and risk on which his claim for non-refoulement protection under the four applicable grounds is founded.  I find the Decision of the Board was utterly without fault.  There were no errors of law or irrationality in its Decision or procedural unfairness.  I find no substance in the grounds of this application.  Accordingly, the application is dismissed.

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