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HCAL 3237/2019
[2022] HKCFI 1529
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3237 of 2019
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Baljit Singh |
Applicant |
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Torture Claims Appeal Board / |
1st Putative Respondent |
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Non-Refoulement Claims Petition Office |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. The withdrawal application for leave to apply for Judicial Review refused; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”) dated 25 October 2019 (the “Decision”); and (2) his application by way of affirmation filed on 19 April 2022 to withdraw that application (the “withdrawal application”).
2. The Applicant is a national of India. He surrendered to the Immigration Department on 19 January 2016, claiming to have sneaked into Hong Kong from the Mainland China on 12 January 2016. He lodged a non-refoulement protection claim by written representation dated 18 May 2016 with the Director of Immigration (the “Director”).
3. In due course, his non-refoulement claim was assessed on all applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 21 December 2018, the Director rejected his claims. His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 25 October 2019.
4. On 30 October 2019, the Applicant took out the leave application. He did not provide any specific grounds of application in his Form 86 or in his supporting affirmation filed on the same day.
5. Then, on 28 February 2022, he filed an affirmation affirming:
“We want to go back my country India.”
That is only a statement of his intention to return to India. It does not precisely state the relief he is seeking. Presumably, he wanted to withdraw the leave application and to return to his home country. The statement, nevertheless, does not provide a good or valid reason for withdrawing the leave application in the light of the serious allegations of harm and risks raised in his non-refoulement claim and in the appeal to the Board. To ensure that his intention was to withdraw the leave application and that the withdrawal application was validly made in the sense that it is a well-informed decision which was made voluntarily and not as a result of threat, duress, mis-representation, mis-information or other inappropriate reasons; and to ensure that he will be safe if returned to his home country, the Court wrote to him by letter dated 22 March 2022, giving him the following directions:
(1) The Applicant to lodge a statement with court within 14 days setting out:
(a) the grounds for withdrawal of his leave application, stating in particular:
(b) the outcome of his land dispute with his uncle(s); and
(c) whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by his uncle(s), if he returns to India; and
(d) his submission in support of the application, if so desired.
(2) The withdrawal application as well as his leave application (if the withdrawal application is refused) will be determined on paper, regardless whether the directions at paragraph (1) have been complied with.
6. On 19 April 2022, in purported compliance with the directions, the Applicant filed an affirmation affirming as follows:
“We want go back to my country India N please. I want to cancel my case.”
The Applicant repeated his intention to return to India and expressly averred that he wanted to cancel his case. This affirmation is therefore taken to be his formal application to withdraw the leave application. It is treated as the withdrawal application referred to in paragraph 1 above. However, it does not answer the queries raised in the directions. This Court could not be satisfied that the withdrawal application was validly made and hence refused the application.
7. Having considered the nature of the leave application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.
The applicable legal principles
8. 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[5].
The Applicant’s case
9. The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form prepared by him with the assistance of the Duty Lawyer Service, the record of his screening interview which he attended with legal representation and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board. In gist, his claims are founded on his fear of being harmed or killed by his uncles because of a land dispute.
10. The Applicant is a national of India, now aged 44. He went to work in Bahrain in March 2013. His paternal grandfather owned a piece of land of around five kilas and died intestate. His grandfather had three sons, namely, the Applicant’s father, Nirvair and Jagir. The land is being taken care of and farmed by Nirvair on behalf of the Applicant’s father, Jagir and himself. In 2015, Nirvair caused their grandmother to press her thumbprint on a document to transfer the land to himself and Jagir and became the joint owners of the land.
11. In December 2015, the Applicant approached Nirvair to demand his 1.5 kilas of land. Nirvair assaulted him and threatened to kill him, if Nirvair sees him in India again. He suffered scratches, bruises and his right eye bled. He underwent surgery in a government hospital and received 14 stitches. He was hospitalised for two days.
12. The Applicant did not report the assault and threat to the police because he believes it would be useless because Nirvair had a friend who was the sarpanch of their village and had influence over the police. Besides, the police are notoriously corrupt and he was unable to pay a bribe.
13. On the advice of his elder brother, the Applicant took a flight to Guangzhou on 8 January 2016 and then sneaked into Hong Kong. He married another non-refoulement claimant from India on 23 December 2017 who gave birth to their son on 31 August 2018.
14. While in Hong Kong, the Applicant maintained contact with his family. He was told that Nivair kept looking for him and renewing his threat to kill him. Nirvair also threatened the Applicant’s father to disclose his whereabouts. His father fled to Jalandhar City and advised him that it would not be safe for him in India. The Applicant did not consider internal relocation a viable option for him because he believes Nirvair can locate him anywhere in India.
The finding of the Board
15. The Applicant gave evidence before the Board. The Board found he had given three different and incompatible accounts of his land issues in India in his 2018 Statement, Notice of Appeal and in his evidence before the Board. It found multiple and cumulatively significant aspects of his evidence which cast doubt on the truthfulness of the central aspects of his circumstances. It found unexplained inconsistencies in relation to the entire basis of the Applicant’s claimed land dispute, including the nature of that dispute, who it is between and how and when it arose. On the evidence, the Board did not accept that the Applicant or his family members have ever been involved in any land dispute; that the Applicant was ever harmed or threatened with harm in connection with any land dispute; or that he faces a real chance of such threats, harm or death in India in the reasonably foreseeable future for any of the reasons he has claimed, including from his uncles, Nirvair and/or Jagir, and/or his brother.
16. Applying the law applicable to non-refoulement protection under the four applicable grounds under the USM to the facts found by the Board, the Board concluded that the Applicant had failed to discharge the burden of proving the factual basis in support of his claim for protection under any of the applicable grounds under the USM and dismissed his appeal against the Notice.
Discussion
17. Despite the Court’s directions, the Applicant declined to state his grounds for withdrawal or confirm that his alleged fear and risks of harm had been resolved or that he does not anticipate any real chance that he will be harmed or otherwise ill-treated by his uncles, if returned to India. Having regard to the allegations in his non-refoulement claim, his Notice of Appeal and his evidence before the Board, the Court is skeptical of the reason for his withdrawal application. It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality or even procedural unfairness. It would therefore be in the Applicant’s best interest to have his leave application determined to ensure that he would be allowed to continue his stay in Hong Kong if it is unsafe for him to return to India rather than to allow his withdrawal application and thereby depriving him the benefit of a screening of his entitlement to challenge the Decision by way of judicial review. Hence, the Court refused the Applicant’s withdrawal application and proceeded with determining his leave application.
18. As the Applicant has not advanced any specific or substantial grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality. 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 issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It found that the Applicant had failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the applicable grounds. 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, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. Accordingly, the Applicant’s application for leave to apply for judicial review was also refused.
Conclusion
19. For the above reasons, the Applicant’s withdrawal application and leave application are refused.
Dated 27th day of May 2022.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 27/5/2022
Baljit Singh
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/5/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 15145/19/1/18/IN2994
Director of Immigration
2nd Putative Respondent’s ref. no.: QA T/C 4670/18 (Formerly RBCZ 12010/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at para 14(1)
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