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

HCAL 1255/2021

[2024] HKCFI 2613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1255 of 2021

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 the Applicant being absent in open court;

1.   Leave to amend the Form 86 be granted;

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 7 September 2021 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 14 May 2021.

2.  Notice of hearing had been effectively served on the Applicant on 3 September 2024 while he was detained in Castle Peak Bay Immigration Centre (“CIC”).  On 11 September 2024, the Court was informed by CIC that he would be released that afternoon.  He did not appear at the hearing.  He had not informed the Court of his address after his release.  The Court is satisfied that he had notice of the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  Some preliminary enquiries indicate that the Applicant had filed a non-refoulement claim with the Director of Immigration (the “Director”) and his application was refused by the Director’s Notice of Decision dated 14 May 2021 (the “Notice”).  His appeal against the Notice was dismissed by the Board’s decision dated 17 August 2021 (the “Decision”).  The Board had not made any decision in respect of the Applicant dated 14 May 2021.  Obviously, it is the Applicant’s intention to seek a review of the Board’s Decision dated 17 August 2021 dismissing his appeal against the decision of the Director’s Notice dated 14 May 2021.  Accordingly, leave is granted to amend his Form 86 to give effect to his intention.

Background

4.  The Applicant is an Indian national, now aged 38.  He and his wife arrived in Hong Kong as a visitor on 14 May 2015.  They overstayed and surrendered to the Immigration Department (the “Department”) on 16 June 2015.  He made a non-refoulement claim on 4 November 2015.  His wife also made a separate claim.  He repeatedly failed to report his recognizance to the Immigration Department since 31 October 2016.  As he could not be reached, on 31 May 2018 the Director decided not to process his claim.  After he was arrested by the police on 6 August 2018 and then held in immigration detention, he requested to reopen his claim.  His request was allowed and he was released on recognizance on 14 September 2018.  Two weeks later, he ceased reported his recognizance.  By his letter dated 15 November 2018, he requested to withdraw his claim, which was taken as withdrawn by the Immigration Department’s letter dated 16 November 2018.  He never reported his recognisance and did not leave Hong Kong.

5.  On 4 March 2020, he was arrested by the police for passing or tendering counterfeit notes or coins, having custody or control of counterfeit notes or coins, and possession of apparatus fit and intended for the inhalation of a dangerous drug.  He was sentenced to imprisonment of six months on 1 February 2021.  After serving his sentence on 10 February 2021, he was transferred to immigration facilities.  On 23 February 2021 and 15 March 2021, he requested to re-open his claim which was allowed by the Immigration Department’s letter dated 25 March 2021.  In the same year, his wife gave birth to their child. 

6.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3] and BOR 2 Risk^[4].  As mentioned above, his claim was rejected by the Director’s Notice and his appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of the 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, the Applicant claims that he will be harmed or killed by his brother-in-law who disapproves his marriage, if he is to be returned to India.

8.  The Applicant was born and raised in Dashmesh Nagar, Jagraon, Punjab, India.  His mother and sister are living in Canada.  He had 12 years of formal education and 10 years’ working experience as a taxi driver.

9.  In around 2010, he started a secret relationship with his wife.  Towards the end of 2014, he and his family made a marriage proposal to his wife’s family.  However, his wife’s family did not approve because their families came from different castes.  His brother-in-law strongly opposed it as the Applicant and his wife had started affairs before marriage, which was particularly not tolerated by the local culture.

10.  Despite that, the Applicant and his wife left their homes and stayed at the Applicant’s aunt’s place in Bathinda, where they underwent an informal marriage ceremony in a local Sikh Temple.  After about a month, they moved to Faridkot and then to Moga where they stayed until early May 2015.  Then they went to New Delhi and flew to Hong Kong.  The Applicant heard that the brother-in-law had been to his home area looking for them and made some verbal threats, but there was nothing to suggest that he made the further trip to Bathinda. 

11.  The Applicant asserted that “honour killing” could take place when people marry without their family’s acceptance and/or outside caste or religion.

12.  The Applicant also said he was told by his wife that his brother-in-law was affiliated to Shironmani Akali Dal Party (“SAD”) and one of its members was a member of the Legislative Assembly for the Jagroan constituency.  Hence, he does not believe the Indian authorities and police could protect him because of the brother-in-law’s influence through the SAD. In addition, the Applicant alleged that the police were corrupt.  Also, he does not believe internal relocation viable because his wife’s family could locate him throughout India through their powerful network.

The finding of the Board

13.  The Applicant testified before the Board.  Pursuant to section 37ZD(1)(b) of the Immigration Ordinance, the Board found the Applicant’s failure to take advantage of all the opportunities he had to progress with his claim regularly as behaviour detrimental to his credibility.  Such failures include his repeatedly failing to report his recognizance, withdrawing the claim after entering into recognizance and then disappeared, seeking to re-open the claim only after he was arrested.  Nevertheless, the Board accepted the basic facts of the Applicant’s case, ie that his brother-in-law opposed to the Applicant’s relationship with his sister and indicated his wish to harm the Applicant. 

14.  However, it did not accept that the brother-in-law would do anything harmful to the Applicant and his wife, as the brother-in-law had never escalated his verbal threats to any real effort to locate him.  The Applicant was never injured by him, not to mention to the required severity.  Furthermore, the events occurred six years ago.  The Applicant had not received any information about his brother-in-law since then.  There is no reliable evidence to suggest that his brother-in-law would now do anything harmful to the Applicant or his wife.  For these reasons, the Board found that the Applicant’s fear was self-induced and speculative.

15.  The Board noted that during their stay in Bathinda, Faridkot, and Moga, the Applicant and his wife did not encounter his wife’s family including the brother-in-law, which suggested that any political connections that his brother-in-law may have did not extend beyond the local area.  At the hearing, the Applicant also accepted that his problem was a localised one.  Hence, the Board found that it unlikely that the brother-in-law would have the power to locate the Applicant throughout the whole country in order to harm him.

16.  There was no evidence to suggest that the Applicant would not have received state assistance, if sought.  On the basis of authoritative and credible country of origin information (“COI”), the Board did not accept the Applicant’s claim that the state of India was unwilling to help him.  Furthermore, it found that there was no reason why he could not have sought police assistance or complained to higher levels about the local police, once he left the local area in January 2015. The Board was satisfied that adequate state protection was available to the Applicant.

17.  In spite of his submissions about honour killing, the Appellant acknowledged that he only intended to set out a general statement about honour killing, and that there was nothing to suggest that it applied to his own circumstances.  Neither in the hearing nor in the papers did the Appellant ever suggest that he or his wife was subject to or targeted for honour killing by the brother-in-law or anyone else.  The Board therefore did not consider the Applicant to be at risk of honour killing.

18.  The Board found, and the Applicant agreed, that the dispute between him and his wife family including brother-in-law was a personal and private matter.

19.  On the basis of COI, the Board found that as an able-bodied person, the Applicant could safely relocate to Mumbai or New Delhi to avoid the perceived risks of harm from his wife’s family including brother-in-law, which were localised within his home area.

20.  The Board found that for the purpose of assessing Persecution Risk his wife’s family including brother-in-law could not be considered as state actors.  It also found that the Applicant’s dispute with them had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground.  In any event, the Board found adequate state protection would be available to avoid the risk of harm.

21.  As for BOR 2 Risk ground, the Board found that there was nothing to suggest that the Applicant would be deprived of his life by the Indian government or that his life would be threatened by a risk targeting him personally.

22.  As for BOR 3 Risk ground, the Board found that the Applicant had not made out a case that he would be subjected to harm at the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest he would be at such risk of such harm, if refouled.

23.  In respect of Torture Risk ground, the Board found that no by any public official or person acting in an official capacity was involved in the alleged ill-treatment of the Applicant.  It was also not the Applicant’s case that there was any acquiescence by the state in inflicting the ill-treatment on him or was there any consistent pattern of gross, flagrant or mass violation of human rights in India.  Hence, the Board found the claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

24.  Applying the law applicable to non-refolement protection to the above findings of facts, the Board found that the Applicant is not entitled to protection under any of the four applicable grounds under the USM.  For all these reasons, the Board dismissed his appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

25.  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.

Grounds for judicial review

26.   The Applicant did not advance any grounds for review in Form 86.  In his supporting affirmation, he stated that he was not satisfied with the Director’s decision in the Notice, and that his wife was still in danger in his home country.

Overall scrutiny

27.  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 burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board accepted the core of the Applicant’s case.  It basically assessed his claim on the basis of the case as he asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  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 and irrationality.  The Court could detect no error of law 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 was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

28.  For the above reasons, leave is granted to amend his leave application as aforesaid but his 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