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

HCAL 1924/2019

[2024] HKCFI 3234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1924 of 2019

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.  Extension of time to apply for leave for Judicial Review 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 9 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 March 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 May 2018 (the “Notice”).

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 and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, his leave application as regards the Director’s Notice is refused and the Court only considered his leave application as regards the Decision.

3.  The leave application was filed 3 months and 18 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made 18 days out of time. Extension of time to file the leave application is required.

4.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

5.  The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. As the delay is not substantial, instead of incurring time to explore the reasons for the delay with the Applicant by way of an oral hearing or correspondence, the Court considered it more expedient to proceed straight to assess merits of the leave application, which is usually the crucial and determining factor in an application for extension of time to apply particularly where the delay is not substantial.

Background

6.  The Applicant is an Indian national. He arrived in Hong Kong on 16 April 2011. He made a non-refoulement claim on 18 March 2015, almost four years later. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if returned to India, he will be harmed or killed by his uncle because of a land dispute.

8.  The Applicant, now aged 47, was born and raised in Dadehar Sahib Village, Sarhali Kalan Post Office, Tarn Taran Tehsil & District, Punjab, India. He is married. His wife and two sons are living in India. He received 10 years’ formal education and had 19 years’ experience working as a farmer.

9.  Prior to his birth, his grandfather had divided a piece of land equally between his father and his uncle. His father then bought another piece of land (the “new land”) adjacent to his uncle’s land. In 2008, his uncle started asking his father to give him the new land. His father refused. Towards the end of 2010, he discovered his uncle had occupied his father’s new land. He and his father then drove a tractor to the new land in an attempt to regain possession. They were refused entry by the guards employed by his uncle. Shortly after, his uncle and his associates armed with wooden sticks and riffles arrived on the scene. After a few verbal exchanges, his uncle slapped the Applicant’s face and shoved his father. Then, his uncle’s associates beat him up. His uncle also fired a gun into the air and threatened to kill the Applicant if they refused to give the new land to him. The police subsequently arrived and separated them. Before the Applicant and his father left, his uncle threatened the Applicant that if he went to the new land again, he would be shot dead. The Applicant and his father returned home. They asked for a doctor to go to their home to treat their injuries.

10.  On the next day, the Applicant went to the Harike police station to make a report against his uncle, but the police refused to register a complaint and asked him to resolve the dispute himself. He did not go to other police stations to file the complaint, as he did not have money to bribe the police. The Applicant’s father wished to transfer the new land to the Applicant. However, he passed away about a month after the assault without completing the transfer. Out of his fear of his uncle, the Applicant and his family relocated to his grandparents’ home in Gurdaspur City.

11.  He does not believe that the authorities and police could protect him, as they are corrupt. He does not believe internal relocation viable because his uncle is rich, influential, associated with the Shiromani Akali Dal Party (“SAD”), and could locate him throughout the country through SAD’s powerful network.

The finding of the Board

12.  The Board found many significant inconsistencies between the Applicant’s testimony before the Board and his evidence in the NCF and screening interview. The most significant ones are related to the nature of the physical disputes between him and his uncle and the number of assaults. These form the core of his claim. In his NCF, he claimed that there was only one assault by his uncle and his father passed away a month after that assault. But at the hearing, he said that there were two assaults and that his father was shot to death during the second assault. He insisted he had mentioned about the shooting of his father during the screening interview. However, the record of interview only showed he had mentioned only one assault. He tried to excuse himself saying that he could not read the record which was in English. There are other inconsistencies such as whether he and his father were treated by the doctor at his home or were treated and hospitalised for two days in the hospital, whether he and his family relocated to his grandparents’ home or his in-laws’.

13.  The Board also observed that he did not make his non-refoulement claims until four years after his arrival in Hong Kong. In his NCF, he said he applied for protection as soon as he knew about availability of non-refoulement protection in Hong Kong. At the hearing, he admitted he knew about availability of protection in Hong Kong, but did not make an immediate application as he thought he would be repatriated in two to four months and it would not be necessary to make an application. On this premise, the Board found that there was virtually no aspect of the Applicant’s evidence in relation to which his evidence was consistent, and reached the conclusion that he was not a truthful witness and that he fabricated the totality of his claim.

14.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment, if refouled to India. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

15.  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[7].

Grounds for judicial review

16.  After the above legal principles had been explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision and would leave it to the Court to look for these vitiating elements on his behalf. He had not advanced any grounds of review in his Form 86. However in his supporting affirmation, he advanced the following 4 grounds:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair.

17.  These grounds are very familiar to the Court as it had seen them in other leave applications. The Applicant said these grounds were prepared by a lawyer on the basis of what he told the lawyer. He said he understood them and could elaborate on them. However, when asked for particulars of the unfairness or unreasonableness alleged, he said he had nothing to say. He did not understand the meaning of ‘state acquiescence’. When the term was explained to him, he admitted he had no evidence of state acquiescence. He could not give particulars of the argument which he complained the Board had not given enough weight to. In short, he was unable to give particulars of the grounds of review. In the absence of specific grounds of application or grounds with sufficient particulars, 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.

Conclusion

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and rejected almost the entirety of his case. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application 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