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

HCAL 369/2019

[2024] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 369 of 2019

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 the Applicant in open court;

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 11 February 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 24 January 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 April 2018 (the “Notice”). 

2.  The Applicant is an Indian national. He entered Hong Kong on 26 January 2015 as a visitor and was permitted to remain until 9 February 2015.  He overstayed and surrendered to the authorities on 10 February 2015.  On 13 March 2015, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

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

4.  The Applicant, now aged 28, was born in District Moga, Punjab, India.  He had five years’ of education and worked as a labourer between 2008 and 2014.

5.  The Applicant’s father had been mentally ill.  His mother and his younger brother deserted his father. In around 2008, his father’s condition worsened.  He could not look after himself or find employment.  He was taken to a mental hospital in Amritsar but did not receive any treatment or diagnosis there.

6.  The Applicant’s uncle lived around 10 to 15 minutes away from the Applicant’s home.  His uncle’s wife has a cousin who was a police officer (the “police officer”) in India.  His uncle and the officer were close.

7.  The Applicant’s grandfather had 16 canals of land (which is equivalent to two acres).  In 2010 or 2011, he transferred around 8 canals to the Applicant’s uncle and 8 canals direct to the Applicant (the “Land”) because the Applicant was looking after his father.  The Applicant leased the Land to a man from a neighbouring village in around 2013.  About half a year later, his uncle demanded the Land be handed over to him in exchange for food and money which he would provide to the Applicant and his father.  When the Applicant refused, his uncle threatened to take actions against him and demanded that he reconsidered his decision.

8.  Since then, the uncle, who carried a sword with him, and the Officer, who was dressed in police uniform, visited the Applicant’s house from time to time.  In July 2013, his uncle and the officer visited the Applicant again.  The Applicant refused to give the Land to his uncle and his uncle beat him with fists and kicked him.  The officer claimed that the police would support his uncle’s claim for the Land.

9.  The Applicant suffered from bruises and swellings.  It took him one week to recover from the injuries.  About two or three months later, his uncle and the Officer visited the Applicant again.  The Officer told him that he would be killed unless he handed over the Land.  In around February 2014, his uncle and the officer visited him again.  This time, the officer threatened to file a false case against him.  They did not harm him on this occasion.

10.  The Applicant then fled to Moga City to live with his friend, where he stayed for around four months. Nothing eventful happened in Moga City and he returned to his home village to check on his father.  His father told him that the police and his uncle had come to look for him a few times and asked him to leave his home village immediately. The Applicant then went to Jagraon to live with another friend.  After staying there safely for about five or six months, his friend advised him to leave the country.  Then, the Applicant flew to Hong Kong.

11.  The Applicant never approached the police in India because of the threats from the Officer.    He did not believe the police would protect him without a bribe and he feared that false charges would be laid against him upon his return.  He did not believe he could safely relocate to other parts of India because his uncle would pressure his father and his friends to give up his location.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found he “completely contradicted his claim at the hearing”.  There were numerous inconsistencies between the Applicant’s testimony and his account in the NCF.  Some of these were put to the Applicant towards the end of the hearing[5]. Two of the most egregious ones are as to when his mother deserted his father and when and how his grandfather transferred the Land to him.  In his NCF, the Applicant said his mother had left his father 15 years ago, ie in 2003 and he had never seen her since.  At the hearing, he said she left in 2011 and he had met her once before coming to Hong Kong.  More importantly, in his NCF, he said his grandfather transferred the Land to him in 2010 or 2011. He gave two different versions to the Board.  He said the Land was transferred to his father in 2014 and it was still in his father's name, or it was transferred by his grandfather to his father at some point and then transferred to the Appellant in 2013.  When the inconsistencies were pointed out to him, the Appellant replied that the account in the NCF was correct ie the land was transferred into his name in 2010-2011. When the Board pointed out to him that in 2010 or 2011 he had no capacity to enter into the conveyance, he changed his explanation and said that the initial transfer to him was “provisional” until he turned 18.  In answer to the Board’s suggestion that it would have been simpler for his grandfather keep the Land until the Appellant turned 18, the Appellant gave a new, unexpected answer that the Land was in his father’s name because the Appellant was out of the village.

13.  The Board found him incredible and that he had fabricated the events to support his claim.  It rejected his evidence in its entirety.  It did not accept he held any land or that he had been harassed and harmed by his uncle and the officer because of the Land.  As the Board dismissed the only ground for claiming protection, namely the alleged threats from his uncle and the Officer, the Board found that he failed to establish that he would be subject to any of the proscribed risks of harm upon his return.

14.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and 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[6].

Grounds for judicial review

16.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he said he was not satisfied with the Board’s Decision.  In response to the Court’s letter inviting submission, he made a five-page submission repeating the relief sought, quoting some legal principles, some broad un-particularized allegations of procedural unfairness, unreasonableness, irrationality, breach of duty of care owed to him as an unrepresented claimant,  and his present situation in India.  He made two specific allegations which may be regarded as complaints about error of law. First, the hearing before the Board was not by way of hearing de novo.  Second, the Board relied on outdated country of origin information (“COI”) and COI from unreliable sources.

17.  After the legal principles in the above section was explained to him, the Applicant raised as an error of law that his uncle and the police are still looking for him and his life would be in danger if he is returned to India.  He confirmed that he had no complaint about procedural unfairness and irrationality. 

Discussion

18.  The Applicant’s complaint about error of law is, in substance, a challenge against the Board’s finding of fact that he would not be subject to any of the proscribed risks of harm from his uncle and the Officer upon his return to India.  That is not permissible unless the finding is the result of error of law, namely that the Board made the finding without a hearing de novo or by relying on outdated COI or COI from unreliable sources (the Applicant having confirmed that he had no complaint about procedural unfairness and irrationality).

19.  The meaning of hearing de novo was explained to the Applicant.  He could not explain what was the basis of his complaint that the appeal was not a hearing de novo.  On the face of the Decision, the Board conducted a fresh hearing with the Applicant giving evidence.  It made finding of credibility, analysed the evidence, made finding of fact, discussed the application of the law to the facts found.  It did not make the Decision by accepting or rejecting the Director’s finding or decision in the Notice.  It made a fresh determination.  The Applicant agreed with the Court’s suggestion that a hearing de novo had been held. 

20.  The Applicant could not identify what were the outdated or unreliable COI relied on by the Board.  In essence, the Board’s finding is that the Applicant was incredible and failed to discharge his burden of proof.  That finding was based on the inconsistencies between the Applicant’s testimony before the Board and the evidence in his NCF.  The Board did not rely on any COI in coming to that finding. 

21.  The other grounds disclosed in his submission are wholly lacking in particulars.  He did not explain or demonstrate in what way the Board failed to assist him as an unrepresented claimant and in what way was the Board in breach of the high standard of fairness.  The Applicant explained, as is expected, that the submission was prepared by his “friend” and he did not understand the meaning of hearing de novo and had no idea what COI he was complaining about. 

22.  In the absence of specific grounds of application, the Court in an application for judicial review 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.  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 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.  Obviously, the Board approached the Applicant’s claim on the basis of his evidence and made its finding afresh. There is nothing to suggest the Board was just endorsing or rubber stamping the Director’s decision in the Notice.  The Board found the Applicant’s evidence incredible and his case concocted.  The Applicant had therefore failed to establish the factual basis in support of his claim for protection.  As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four 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 and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  

Conclusion

23.  For the above reasons, the Applicant’s application for leave to apply for judicial review 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] 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]  Paragraph 91 of the Decision

[6] [2018] HKCA 524 at [14(1)]