NISHAN SINGH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 2839/2018

[2021] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2839 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for Judicial Review be refused

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.  The Applicant, a male born in 1991, is a national of India.  He arrived in Hong Kong in November 2014 and was granted permission to remain as a visitor until 29 November 2014. He overstayed and surrendered himself to the Immigration Department on 15 September 2015.  He was released on recognizance and made a formal non-refoulement claim to the Director of Immigration (“the Director”) on 29 November 2016.

3.  Subsequently, the Applicant obtained the services of the Duty Lawyer Service and he was assisted by the Duty Lawyer Service to complete a Non-refoulement Claim Form (“NCF”) which he lodged with the Director on 3 January 2018.  In the NCF, the Applicant claimed that he was at risk of being seriously harmed in India by his uncle and cousins because of a dispute over land.  Due to medical reasons, the Applicant could not attend an interview with an Immigration Officer but instead, on 30 January 2018, the Applicant provided a written response to a set of questions sent to him by the Immigration Officer.

4.  In his decision dated 9 February 2018, the Director rejected the Applicant’s application for non-refoulement protection.

5.  The Applicant appealed against the decision of the Director to the Board on 22 February 2018.

6.  The Applicant appeared at a hearing before the Board on 10 September 2018.

7.  By its decision given on 3 December 2018, the Board confirmed the decision of the Director and rejected the Applicant’s appeal.

Applicant’s case

8.  The Applicant was born in 1991 in Jauar village in Tarn Taran, Punjab province in India. He is a Sikh.  He is unmarried. From 2004 to 2015 he has worked as a farmer.  His parents and 5 siblings live in India.

9.  The Applicant’s father has 2 brothers, Jaswant and Dilbir.  Jaswant lives in Amritsar and has a son.  Dilbir lives in Dubai and has 2 sons.

10.  The Applicant’s grandfather owned a parcel of land about 2.5 acres which by his Will was left by the grandfather to  the Applicant and his 2 brothers in equal share.  The grandfather died in 2008.  The Applicant and his family did not know about the grandfather’s Will until 2013 when that was told to them by Avtar Singh (“Avtar”) the head of the village committee.  Avtar further said that the transfer of the land to the Applicant’s family was wrong but that it should have been transferred to the Applicant’s father and his 2 uncles in equal share.

11.  After the Applicant’s father had checked and confirmed the land transfer with the local land registry, the Applicant’s family decided to keep the land and refused Avtar’s request to share the land with the Applicant’s 2 uncles.  Avtar belongs to the Shiromani Akali Dal (“SAD”) but the Applicant’s family has stopped supporting the SAD since 2011.

12.  Some time afterwards, the Applicant and one of his brother were attacked by their 2 cousins on their way home.  The cousins were angry that the Applicant and his family had refused to transfer the land as requested by Avtar.  The Applicant and his brother suffered bruises and abrasions.

13.  Two weeks later, Avtar with 4 or 5 men armed with guns came to the Applicant’s home and threatened to kill the Applicant and his 2 brothers if they did not transfer the land as requested.  The Applicant’s father refused and was pushed to the ground, breaking his arm.

14.  After that incident, the Applicant’s family decided that the Applicant and his 2 brothers should leave the family home for protection.  The Applicant went to the temple in Amritsar and his two brothers went to stay with other relatives.

15.  Two months later, the Applicant went home but as soon as he did, one of his cousins came to the farm and slapped the Applicant demanding that he transferred the land.  The Applicant returned to Amritsar staying there until November 2014 when he came to Hong Kong.

16.  Thereafter one of the Applicant’s brother has received continued threats from their cousins and was once poisoned and hospitalized but later died.

Director’s decision

17.  The Director dealt with the Applicant’s non-refoulement claim under the unified screening mechanism (“USM”) and assessed the claim on all available grounds including torture risk under Part VIIC of the Immigration Ordiance, BOR 2 risk and BOR 3 risk under Article 2 and Article 3 respectively of the Hong Kong Bill of Rights Ordinance, as well as persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

18.  The Director found that the attacks and threats to the Applicant from his uncles and cousins to be of low intensity, low frequency and did not accept that the asserted ill treatment to have attained a minimum level of severity.  The Director found that the risk of future harm to the Applicant, if returned to India, to be low.  On that basis, the Director found as a fact that there were no substantial grounds to believe that there will be any real and substantial risk of the Applicant being harmed or killed if returned to India.

19.  The Director, on the basis of the COI material available, further found that state protection and internal relocation to be available to the Applicant.

20.  On that basis, the Director rejected the Applicant’s claim for non-refoulement protection.

The Board’s decision

21.  After hearing out the Applicant in the oral hearing, the Board formed the view that the Board was unable to confidently dismiss the Applicant’s evidence and claims, and decided to give him the benefit of the doubt (see para [43] of Board’s decision).  As a result, the Board found on the facts that such a land dispute existed between the Applicant’s family on the one hand and the Applicant’s 2 uncles and cousins on the other hand and that this dispute arose because the Applicant and his brothers, having been given the land by their grandfather, refused to transfer any part of the land to the Applicant’s 2 uncles and cousins.  The Board further accepted that the Applicant were subjected to intimidation threats and attack by his cousins in Jauar and that the Applicant and his 2 brothers had to leave Jauar for safety, with the Applicant taking refuge in Amritsar until his departure from India in November 2014.

22.  The Board also accepted that since the Applicant’s departure from India, one brother subsequently was poisoned and later died, while the other brother was shot and injured by their cousins who continued to demand that the land be transferred to them.

23.  On the above findings, the Board came to the view that on the evidence found, the Applicant’s uncles and cousins were private individuals and not public officials acting in any official capacity in the context of the circumstances claimed by the Applicant to be at risk of being subjected to harm. (see para [57] of the Board’s decision).

24.  As for the Applicant’s claim that the police would not assist him when the matter was reported to police, the Board took the view that there may be some police officers in the Applicant’s local area who may be subject to the influence of persons with connection but that is a far cry from saying that generally the police in India would deliberately withhold protection from the Applicant or would fail to prevent, investigate, prosecute and punish such ill treatment by the uncles and cousins. (see para [58] of Board’s decision)

25.  Accordingly, the Board found that the harm which the Applicant feared from his uncles and cousins did not come within the definition of torture in section 37U(1) of the Immigration Ordinance (see para [59]).

26.  As for BOR 3 risk, the Board found on the evidence that the Applicant would suffer a small but real risk and that the Applicant would suffer mistreatment (which would constitute CIDTP) if he returned to his home in the foreseeable future (see para [67] of the Board’s decision) but when taking into account state protection and internal relocation (which the Board found to be available to the Applicant), the Board came to the conclusion that there are no substantial grounds to believe that the Applicant faced a real risk of being subjected to CIDTP if he returned to India (see paras [68] to [72] of Board’s decision).

27.  In so far as the persecution risk is concerned, the Board again accepted on the evidence that the Applicant faced a real risk of being subjected to CIDTP from his uncles and cousins if he returned home in the reasonably foreseeable future (para [76] of Board’s decision).  However, the evidence also showed that the reason for his relatives wanting to harm him were for purely financial and personal reasons and not because of his race, religion, nationality, political opinion or membership of a particular social group. (para. [77] of Board’s decision).  Moreover, the Board did not accept that the police force in India or the state of India more generally would deliberately withhold protection to the Applicant as regard his uncles and cousins and that the COI information showed an appropriate system of criminal law and justice system in India which is sufficient to protect the lives and safety of its citizens. (paras [79] to [80] of Board’s decision).  The Board also took account of the availability of internal relocation to the Applicant and concluded that it cannot accept that the Applicant has a well-founded fear of persecution in India.

28.  As for BOR 2 risk, the Board did not accept that the Applicant faced a real risk of being subjected to the death penalty or being arbitratily deprived of his life in any of the claimed circumstances or for any other reason.  Thus his claim for non-refoulement protection on the ground of BOR 2 risk was not substantiated.

29.  Accordingly, the Board refused the Applicant’s appeal and confirmed the decision of the Director.

Discussion

30.  The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

31.  When When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore while this court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

32.  In the present case, the Board did not take issue with the personal and family background of the Applicant.  It further accepted that there was a land dispute between the Applicant’s family and the Applicant’s uncles and cousins and that intimidation, threats and some harm had been caused to the Applicant by his cousins.

33.  The Board’s findings that state protection and internal relocation were available to the Applicant and that there was no state or official involvement in respect of the threats intimidations and harm caused to the Applicant from his cousins are all findings which are well within the province of the Board to make.

34.  The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

35.  Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all the four available grounds on which this non-refoulement claim is brought, separately and distinctly and dealt with the merits of each limb individually.

36.  The decision reached by the Board cannot be said to be in any way unreasonable. Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board.  There is no reasonable arguable basis to challenge the findings of the Board.

37.  For the reasons given, there are no prospect of success in the Applicant’s intended application. Accordingly, the court refused to grant leave for judicial review.

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