PARDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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 8 August 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 10 February 2021 dismissing his appeal against the decision of the Director of Immigration in his Notice of Further Decision refusing his claim for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is an Indian national, now aged 35.  He surrendered to the Immigration Department on 7 September 2015, claiming to have sneaked into Hong Kong from Shenzhen on 1 September 2015.   His personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed, if returned to India, by his uncle because of a land dispute. 

The finding of the Board

3.  The Applicant’s initial claim in his non-refoulement claim form (“NCF”) was that his uncle was not happy that all his grandfather’s land were passed to the Applicant’s father upon the grandfather’s death.  One day in 2014/2015, a fight broke out between the Applicant’s father and the uncle, which ended with the uncle shooting both the Applicant and his father (“Incident I”).  The Applicant did not return home but fled to Karnal to work and stay with a friend.  One day, seven men, including the uncle’s son (ie the Applicant’s cousin) came to local market where the Applicant worked and assaulted the Applicant (“Incident II”).  The Applicant then called home and learned that his Father had reported Incident I to the police, but instead of arresting the uncle, the police arrested his father and held him in custody for three days.  Believing he was no longer safe in Karnal or his home village, he fled to New Delhi in mid-August 2015.  Then, he left India on 29 August 2015 and entered Mainland China on 30 August 2015.  

4.  The Board considered his account was extremely vague, internally inconsistent and incoherent, unsubstantiated by any evidence and inherently implausible.  It had serious concerns about various aspects of the Applicant’s case, in particularly, why was the Applicant targeted instead of his father who was the owner of the land, especially as he is not the eldest son of his father’s family and why his parents and his elder brother remained in the village living at the same address had not been harmed.

5.  In his Notice of Appeal to the Board (“NOA”), the Applicant shifted the emphasis of his case claiming that his uncle wanted to kill him because he had injured his uncle during Incident I.  But he had mentioned not a word about injuring his uncle in the NCF.  When confronted, he had no cogent answer to give.  There are other significant inconsistencies between his account in the NOA and his evidence before the Board as to what happened during Incident I.  For example, in the NOA, he said his uncle hit his father with an axe and he hit his uncle back with a long axe, but at the hearing he said his uncle and his cousin hit him and his father with wooden sticks and he hit them back with a long stick of about 6 to 7 feet long and three inches thick.  Another significant inconsistency is that he said in his NOA that he called his brother in July 2017 and his brother told him that his uncle had shot his father dead and his brother had fled to Dharamshala with their mother.  But in his testimony before the Board, he said that his brother went to Dharamshala after both their parents had died of illness.  When confronted with the inconsistency, he said he did not know. 

6.  Having considered his evidence as a whole, the Board could not accept that the Applicant had ever been threatened or assaulted by his uncle and that he came to Hong Kong due to a fear for his life and safety.  The Board noted that land disputes are known to be prevalent in rural and urban areas across India.  It thought the Applicant sought to build a claim on this known issue in the hope that it would lend him credibility.  It found he had failed to prove the factual basis to support his claim for protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). 

7.  It also found even on the case as he presented the Applicant had no real risk of serious harm to his life.  In Incident I, the uncle had a gun and fired at the Applicant and his father, though without hurting them.  If his uncle had wanted to kill them, he could have gone to their home the same night and completed what he failed to do in the day, but he did not.  In Incident II, despite he was outnumbered, the Applicant only suffered minor injuries.  If his cousin had wanted to seriously harm him, he would not have attacked him in broad daylight.  The Board could not accept the Applicant had proved he had a real risk of serious harm, if refouled.  It was also satisfied on the basis of country of origin information that adequate state protection would be available to the Applicant in India.  Even accepting his case at its highest, the Board was not satisfied he had proved his entitlement to protection under any of the applicable grounds under the USM.

The legal principles applicable to judicial review

8.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

9.  After the legal principles in the above section had been explained to him, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision.  He had not advanced any ground of review in the Form 86.  In his supporting affirmation, he emphasized his dissatisfaction with the Decision and reiterated his danger returning to India.  These are in effect challenges of the finding of fact by the Board, which are impermissible in an application for judicial review.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

10.   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 carefully, tested it against common sense and inherent probability.  It found multiple significant inconsistencies and gaps within the Applicant’s evidence.   The Board gave full reasons for its finding.  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 four applicable grounds under the USM.  It did not stop there but went on to consider the Applicant’s claim on the basis of the case as he asserted.  It found even at its highest, the Applicant’s case does not entitle him to protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are findings of fact, they are 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 irrationality in the Decision.  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 had 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.

Conclusion

11.  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

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