AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1073/2021

[2024] HKCFI 2591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1073 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 28 July 2021 for leave to apply for judicial review (the “leave application”).  He did not identify the decisions sought to be reviewed by date.  He named the Immigration Department and Torture Claim Appeal Board (the “Board”) as the proposed respondent and interested parties.  In his supporting affirmation, he annexed a copy of a Notice of Decision dated 14 July 2021 (the “2021 Notice”) by an immigration officer on behalf of the Director of Immigration (the “Director”).  Having regard to the background as set out in the latter part of this decision and the non-refoulement protection regime, it is obvious that the Applicant’s intention is to seek judicial review of the decision of the Director in the 2021 Notice refusing his request for making a subsequent claim for non-refoulement protection (respectively, the “request” and “subsequent claim”).  The Board was not the decision maker of the 2021 Notice and has no power to determine appeal against such notices in respect of subsequent claims.  Accordingly, leave is granted to amend the Form 86 by identifying the decision sought to be reviewed as the Director’s decision in his 2021 Notice and the Board is removed as a putative party to this leave application.

2.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the 2021 Notice, the papers, and all the circumstances, the Court is of the view that his application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indian national, now aged 30.  He had previously entered Hong Kong as a visitor on 12 January 2014.  He overstayed, surrendered to the Immigration Department and then made a non-refoulement claim on 26 March 2014 (the “previous claim”).  His previous claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2] and Persecution Risk[3].  In gist, his claim was that as result of his father’s refusal to sell his land property and to allow his elder brother to share half of the proceeds of sale with the Applicant, his brother took revenge on their mother and transferred his rancor against him, their father having left India for employment overseas.  His brother harassed his mother and inflicted physical harm on the Applicant.  He therefore came to Hong Kong to seek protection for his life.  He feared he will be subjected to further ill-treatment by his brother and his associates, if refouled back to India.  His previous claim was dismissed by the Director’s Notice of Decision dated 16 February 2016 (the “2016 Notice”).  In a letter, two days later, he declared it was safe for him to return to India.  He was then removed to his home country on 12 March 2016. 

4.  On 2 March 2021, he sneaked into Hong Kong.  He was arrested by the police and referred to the Immigration Department on 15 March 2021.  On the same day, he made the Request for lodging the subsequent claim.  He was given free legal representation by the Duty Lawyer Service.  He provided further information in support of his subsequent claim.  His Request was rejected by the Director’s 2021 Notice.  He now seeks leave to judicially review the Director’s decision in the 2021 Notice.

The Applicant’s previous claim in 2014

5.  According to the Applicant, his brother’s dispute with their father arose in about 2008 when the Applicant was aged 14.  As he was young then, he did not know much about the dispute.  In essence, his brother suffered heavy loss in his travel agency business and was in debt.  He wanted their father to sell a piece of vacant land adjacent to their family house worth about HK$250,000 and give him half of the proceeds of sale to pay off his debts and to fund his business.  Their father refused because he thought the Applicant’s brother would squander away the money and he wanted to pass the land to the Applicant, being the youngest son, upon his marriage and to raise a family.  The dispute between his brother and their father escalated to such a level that their father disowned his brother and published an announcement in the local newspaper to that effect.

6.  One day in mid 2008, while their father was working in Dubai, five or six men claiming to be buyers attempted to take possession of the land.  Their mother called the police.  The police came and expelled the trespassers, but did not allow their mother to make a first information report.

7.  About a month later, his brother and several men came to the house and accused their mother of not letting him have half of the land.  He threatened that he will find a way to occupy and sell half of the land.  Then he and the men left.

8.  On the following day, some policemen came and accused the mother of depriving his brother of his right to share the land.  They arrested her, took her to the Mehna Police Station and later detained her in Faridkot Central jail.  The Applicant did not know what offence his mother was charged with.  

9.  The father rushed back from Dubai and secured the mother’s release. His mother had been detained for 40 days.  The Applicant did not know the reason of the arrest and release. 

10.  Towards the end of 2008 or early 2009 after their father had returned to Dubai, his brother came to the Applicant’s home with four to five men carrying baseball bats and wooden sticks.  His brother scolded the Applicant and gesticulated that the Applicant should ask their father to sell the land and to transfer half of the proceeds to him.  He also threatened to harm and kill the Applicant.  The Applicant therefore thought his brother had transferred the rancor against him.

11.  For the next four to five years, the Applicant was insulted and harassed by his brother whenever his brother saw him.  His brother slapped him in his home, the street, market and other public places.  There were dozens of such incidents.

12.  One day in the middle of 2013, the Applicant was intercepted by five men carrying baseball bats and kirpans.  They fiercely demanded the Applicant to follow his brother’s instructions to sell the land and to give him half of the proceeds.  They left when some passers-by intervened.  As they were leaving, one of them said, “We will see you soon”. 

13.  A few days later, three policemen in plainclothes from the village police station appeared at the doorstep of the Applicant’s home.  They appeared to have drunk a lot and smelt of alcohol.  They were rude and spoke in a slurring manner.  They threatened the Applicant and his mother that the Applicant should give up his share of the land or they would kidnap and beat the Applicant to death.  The Applicant dared not report the incident to the village police station.

14.  A week later, the Applicant was intercepted by his brother and taken to a nearby house by force.  There, his brother and two others scolded, slapped, kicked and punched the Applicant.  His brother also applied a heated iron rod on his fingers and caused him great pain.  Then they took him out of the house and disappeared.  The Applicant was hospitalised for four days. 

15.  After that incident, the brother kept calling the Applicant’s home intimidating him and pestering to get his share of the land.  He also threatened in a fierce tone to kill the Applicant.  Out of fear, the Applicant and his mother went to his elder sister’s home in Shahkot City for shelter for two days.  Then, the Applicant flew to Hong Kong with his younger sister’s family.  

The Director’s finding in the previous claim

16.  The immigration officer assessed the Applicant’s claim on the basis of the case as he asserted.  He found it was the father’s very firm stance not to help the Applicant’s brother out of his financial difficulties because the brother had operated the travel agency against his father’s advice. The officer held there was no ground for the brother to bear any grudge against the Applicant[4]. The officer thought as the father was an able-bodied person with capacity to make his own legacy arrangement, any threat or force on the Applicant may not be realistic and effective to change the father’s decision.  Hence, the immigration officer found it unlikely that the brother would have targeted the Applicant for that purpose[5].

17.  The officer found there was no indication that the Applicant had suffered any severe pain and ill-treatment from his brother and his associates[6]. Having regard to the low intensity and frequency of ill-treatment suffered by the Applicant, he found the future risk of harm upon the Applicant’s return to India is low[7].

18.  The officer found there was no official involvement in the ill-treatment of the Applicant[8]. As for the arbitrary arrest of the Applicant’s mother and the threat by the three policemen from the village police station, it was the Applicant’s belief that those officers had been bribed by his brother and there was no indication that they were instigated by the Indian government.  There was no indication that the threats and ill-treatment on the Applicant were inflicted, instigated, consented or acquiesced by any public official or other person acting in an official capacity. 

19.  The officer also found that there was no indication that state protection is not available in India[9]. It was only the Applicant’s choice not to seek such protection.  Furthermore, he found the Applicant could also avoid the risk of harm by relocating to other areas in India[10].

20.  Applying the law applicable to non-refoulement protection to the facts found on the basis of the Applicant’s case, the officer found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the three applicable grounds.

The Applicant’s subsequent claim in 2021

21.  On his return to India in March 2016, the Applicant reached a verbal agreement with his brother that the brother would not get any share of the land and the Applicant could return to stay with their mother.  However, towards the end of 2017, after his brother joined the India National Congress as a supporter and became close to one of its member who was also a member of the legislative assembly of Ajitwal (the “MLA”), he renewed his demand for a share of the land again.  The Applicant recalled that when his brother threatened him in 2008, his brother said if he died, his brother would be the next-in-line for the land.

22.  In February 2018, while the Applicant was staying with his sister in Shahkot, the brother suddenly appeared and demanded a share of the land again.  The Applicant and his brother had a fight with bare hands.  After the fight, he overheard his brother calling the MLA and talking about having the Applicant arrested.  An hour later, the Applicant was arrested for criminal contempt.

23.  During the first night of his detention, two officers assaulted the Applicant with batons for 15 to 20 minutes.  On the second night, the same two officers offered to release him but requested him not to tell others about the torture.  The Applicant refused.  Then the two officers kicked, slapped and pushed him for eight to ten times.  Eventually, his mother bailed him out on the following morning.

24.  In August 2018, while the Applicant was riding a motorcycle with a friend on his way home, they were intercepted by their brother and four other males with baseball bats and swords.  They attacked the Applicant and his friend.  The Applicant sustained mild injuries, while his friend was badly injured as he was attacked by a sword.  After his brother and his men left, the Applicant and his friend went to the hospital for treatment. The Applicant was treated and discharged, but his friend was hospitalised for three weeks.  Because of the seriousness of the injuries, the hospital reported the incident to the police.  The police took a statement from the Applicant, but took no follow up action.  The Applicant believed that was because of the influence of the MLA.

25.  The Applicant moved to stay with his aunt in Joytisar Hariyana from August 2018 to March 2019.  One morning in March 2019, his brother came.  An argument broke out between the Applicant and his brother which turned into a fight with bare hands.  The fight ended when his aunt and her husband intervened.  Then, the Applicant moved to his friend’s home in Jagraon. 

26.  On his friend’s advice, he left India for Mainland China in April 2019.  In around May or June 2019, his friend called him and told him that his brother had been to his home and beat him.  His friend was forced to give the Applicant’s telephone number to his brother.  A week later, the Applicant received two calls from his brother threatening to kill him because of the land. 

27.  Their Applicant stayed in Mainland China for two years until March 2021 when he sneaked into Hong Kong.  While in Hong Kong, he was informed by his mother that his brother was still looking for him and it would be very dangerous for him to return to India.   

The Director’s finding in the subsequent claim

28.  The Applicant’s subsequent claim was considered by a different immigration officer.  The officer found the Applicant’s subsequent claim unbelievable and not supported by cogent evidence.  The ownership of the land was with their father and their father refused to give the brother a share of the land.  In addition, their father had published an announcement in 2008 that the brother was no longer his son and had no relation with the Applicant’s family.  The officer is unable to accept in the circumstances that the brother will target the Applicant and not his father for over twelve years because of the land. Further, as his brother’s debt problem arose in 2008, the officer found it illogical that his brother was still urging to get the land for sale in order to settle his financial problem which arose thirteen years ago.

29.  The officer found the Applicant’s allegation that the MLA orchestrated his arrest a mere speculation not supported by any corroborative evidence. 

30.  He also found the Applicant’s account of his brother’s threat over the phone while he was in Mainland China in 2019 illogical for if his brother really wished to kill him, his brother could have done so in the various incidents while The Applicant was in India.

31.  The Applicant had experience seeking protection under the USM before he went back to India in 2016.  Hence, the officer doubted the veracity of his fear as he stayed in Mainland China for around two years before seeking protection again in Hong Kong in March 2021.

32.  The officer found that the alleged threat from his brother arising from the land dispute had been duly considered in his previous claim. They do not constitute a significant change of circumstances which would give his intended subsequent claim a realistic prospect of success.  Even assuming there has been a significant change of circumstances in the country condition in India, such change, when taken together with the materials submitted in support of his previous claim would not give the subsequent claim a realistic prospect of success.  Hence, the officer refused his Request.

Legal principles applicable to judicial review

33.  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.

Ground for judicial review

34.  The Applicant did not advance any grounds for review in his Form 86. In his supporting affirmation, he stated that he was not satisfied with the Director’s decision and he wanted the Court to see his case in a proper way.  He is seeking a re-determination of his request by the Court by way of judicial review, which this Court has no power to make.  In effect, his ground of application is a direct challenge of the immigration officer’s finding of fact which for reason as explained in the preceding section is impermissible.  In the absence proper or specific grounds or grounds with sufficient particulars, the Court would only focus on possible criticisms of the decision in the 2021 Notice on the basis of error of law, unreasonableness and irrationality.

Discussion and conclusion

35.  Having rigorously examined the 2021 Notice, the 2016 Notice, the papers and the new evidence with anxious scrutiny, the Court is satisfied that the immigration officer correctly understood the law and key legal principles relating to non-refoulement protection the USM and the relevant provisions under the Immigration Ordinance relating to the making of a subsequent claim, in particular section 37ZO; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

36.  The immigration officer considered the Applicant’s new evidence and rejected it as incredible.  He gave detailed reasons for his finding.  The Applicant had even failed to establish any subsequent claim, let alone that the new evidence could not constitute a significant change of circumstances.  That finding was sufficient to dispose of the Applicant’s request.  However, the officer went further and assessed the Applicant’s request on the basis that his new evidence was accepted and constituted a significant change of circumstances. But even on that basis, he found that such change, when taken together with the materials submitted in support of the previous claim was not sufficient to give the subsequent claim a realistic prospect of success.  Hence, he refused the Applicant’s request.  Basically, the Applicant had failed to discharge his burden of proof.  These are finding of facts, which are exclusively within the province of the immigration officer, which the Court in a judicial review will not interfere save when such finding involved errors of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the 2021 Notice.  The 2021 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The decision in the 2021 Notice is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

37.  Accordingly, leave to amend the leave application is granted, but the leave application as amended 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]      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

[2]      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”)

[3]      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

[4]      Paragraph 26 of the 2016 Notice

[5]      Paragraph 27 of the 2016 Notice

[6]      Paragraphs 16, 28 and 50 of the 2016 Notice

[7]      Paragraph 15 of the 2016 Notice

[8]      Paragraphs 30 and 31 of the 2016 Notice

[9]      Paragraph 33 of the 2016 Notice

[10]     Paragraph 40 of the 2016 Notice