|
HCAL 20/2019
[2023] HKCFI 972
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 20 of 2019
|
BETWEEN
|
| |
Rishabh Pal Singh |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board / |
Putative |
| |
Non-Refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 3 January 2019 seeking leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 December 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 March 2018 (the “Notice”). He did not request an oral hearing. Having considered the nature of the leave application, the papers and the issues raised, the Court considered the leave application may be justly determined on paper without an oral hearing.
2. The Applicant is an Indian national, now aged 31. He arrived in Hong Kong as a visitor on 31 March 2015. On 18 May 2015, he was arrested by the police for overstaying. Then, on 20 May 2015, he raised his non-refoulement claim.
3. In due course, his non-refoulement claim was 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]. By his Notice, the Director rejected his claims under all four applicable grounds. He appealed the Notice, but 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
4. The following account of the Applicant’s case is mainly based on the information in the Notice submitted by him and the non-refoulement claim form (“NCF”) prepared by him with legal assistance and his record of screening interview in the presence of his lawyer. In gist, he claimed that he will be harmed or kill by one of his paternal uncles (the “Uncle”) and his two sons (“his Cousins”) because they wished to take over his farmland.
5. The Applicant is single. He used to assist in his father’s steelwork business. He had three paternal uncles. One of them passed away in 2009 and left a piece of farmland to him under a will. According to his parents, when his other two paternal uncles learned about this, they were furious because they thought they would be entitled to a share of the farmland. His Uncle has connections with the Bharatiya Janata Party (“BJP”), but the Applicant is not aware of his Uncle’s position in the BJP.
6. In around April 2012, the Applicant was attacked near his home by one of his Cousins and four unknown men. They beat him with wooden sticks for a few minutes. The Applicant managed to escape. He sustained internal injuries and some bruises as a result of this attack. He reported this matter to the police. The police said they will follow up on his complaint.
7. After a few days, the Applicant went to the police station to enquire about the progress of his complaint, but the police refused to help him or release any information to him. He believed the police had probably been bribed by his Uncle.
8. One day in mid-2012, the Applicant’s father was hit by a rock from behind while riding on a motor bike. His father said he saw the Uncle’s car at the scene after the incident. His father reported the matter to the police, but the Applicant does not have any further information regarding his father’s complaint.
9. After another four months, a police officer visited the Applicant’s home and informed his family that the farmland belongs to the Uncle and advised the Applicant and his family to cease any action against his Uncle and his Cousins. But, no proof or reason was given by the officer.
10. Towards the end of 2012, the Uncle, his Cousins and another unknown man went into the Applicant’s home and started shouting foul language at him and wanting to attack him. They said his family should leave the farmland otherwise they would be in great trouble. The Applicant was terrified and escaped by jumping from the first floor of his home to the ground.
11. He fled to his friend’s home. Then, he and his friend went to the police headquarters in Jammu to seek assistance. Later, when he went to enquire about the progress, the police gave excuses and asked him to seek help from other police stations. He believes his Uncle had bribed the police and the police sided with his Uncle because of his affiliation with the BJP.
12. From March 2013 to 2015, the Applicant took refuge in various places, namely his maternal grandparents’ home in Punjab, his maternal aunt’s home and friends’ homes and various temples to avoid being found by his Uncle. Then, with the help of his maternal uncle, he came to Hong Kong via Mainland China.
13. According to the Applicant, the farmland is still in his name and his Uncle could do nothing about it. He believes if he returns to India his life will be at risk because his Uncle will kill him in order to take his land. He did not pursue his claim against his Uncle because he did not know of any other channels to lodge his complaint. He believes he cannot relocate to other parts of India because his Uncle and Cousins will be able to locate him.
The finding of the Board
14. The Applicant gave evidence before the Board. The Board found his evidence vague and his answers to the Board’s questions evasive. His account of events was vague and lacking in particulars notwithstanding the Board’s repeated requests for details and clarification. The Board also found a significant amount of inconsistencies between his evidence before the Board and his NCF.
15. Notably, the Applicant said in his NCF that his uncle left the farmland to him in his will and his other two uncles became furious; but he told the Board that the farmland was transferred to him three years prior to his uncle’s death and that only his Uncle was furious about the transfer. He was also unable to explain why the Uncle waited some three years before attacking him. The Applicant said in his NCF that his father was hit by a rock from behind, but he told the Board that a vehicle bumped into his father’s motor bike from behind. Most significantly, the Applicant said in his NCF that he came to Hong Kong because he knew protection is available but when asked why he did not seek protection until after he was arrested for overstaying, he explained that he did not have any information about availability of protection in Hong Kong. The Board found the number and nature of the inconsistencies sufficiently serious as to undermine the reliability of the Applicant’s evidence. On the totality of the evidence, the Board found the Applicant was not telling the truth and did not accept there was ever a dispute regarding the farmland or the alleged threats/attacks from his Uncle or Cousins. The Board also did not accept that the Applicant would face any real risk of harm upon his return to India.
16. The Board found there is no evidence that lends credence to the Applicant’s suggestion that the BJP or the Indian government would assist his Uncle to track him down. On the basis of authoritative and credible country of origin information, the Board rejected the Applicant’s evidence that his Uncle and Cousins could locate him anywhere in India as inherently improbable. Given his age, education and work experience, the Board found it not unreasonable for him to relocate elsewhere in India to avoid the alleged threats from his Uncle and Cousins, if the risks turn out to be real.
17. Applying the law applicable to non-refoulement protection under the USM to the facts found by the Board, the Board held that the Applicant is not entitled to protection under any of the four applicable grounds. Hence, it dismissed the Applicant’s appeal against the Notice.
Legal principles applicable to judicial review
18. 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[5].
Grounds for judicial review
19. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only enclosed a copy of the Decision. In the absence of specific grounds of application, 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
20. 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. It found the Applicant incredible and was not telling the truth. It found he had failed to prove the factual basis to support his claim and that he could relocate to other parts of India, if his risk turns real. It was on that basis that the Board found he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. 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 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. 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 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.
Dated 21st day of April 2023.
| |
( Allen LEE )
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
|
Sent to the Applicant on 21/4/2023
Rishabh Pal Singh
Applicant’s ref. no.:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors
on 21/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10983/18/3/435/IN2124
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 366/18 (Formerly RBCZ 11615/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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] [2018] HKCA 524 at [14(1)]
|