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HCAL 22/2022
[2022] HKCFI 1610
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 22 of 2022
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Ajaypal Singh |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative Respondent |
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Non-Refoulement Claims Petition Office |
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and |
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Director of Immigration |
Putative |
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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 (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) on 15 December 2021 (the “Decision”).
2. The Applicant is an Indian national, now aged 30. He last arrived at Hong Kong on 29 October 2015 and was permitted to remain as a visitor until 22 November 2015. He overstayed thereafter and surrendered to the Immigration Department on 26 November 2015. On 23 June 2016, he lodged his claim for non-refoulement protection by written representation and then his non-refoulement claim form dated 26 July 2018 (“NCF”).
3. 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]. By his Notice of Decision dated 12 September 2018 (the “Notice”), the Director of Immigration (the “Director”) dismissed his claim. His appeal against the Notice was dismissed by the Board’s Decision dated 15 December 2021. On 7 January 2022, he applied for leave to apply for judicial review of that Decision.
4. A hearing was scheduled for the Applicant on 21 April 2022 and the notice of hearing was sent to him by post on 8 April 2022 at his address as stated in the Form 86, namely Castle Peak Bay Immigration Centre where he was then detained. It then transpired that he had been discharged. A fresh notice was then sent to him by post on 12 April 2022 at his address he informed the Immigration Department. The Applicant did not appear at the hearing. The notice was not returned through the normal course of mail. There is nothing to suggest the Applicant had not received the notice or had moved from his reported address within that brief interval. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper in his absence.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in his written representations, his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service, and the record of his screening interview in the presence of his lawyer. In gist, his claim is based on his fear of the proscribed harm from his paternal uncle and/or his associates, on account of his uncle’s determination to steal the land belonging to the Applicant which he inherited from his father in 2009.
6. One day in 2012[5], a group of unidentified men (the “gangsters”) attacked the Applicant. As a result, he was admitted to hospital for one day for treatment.
7. A month after the first attack, the Applicant was again attacked by the gangsters with choppers and inflicted “life threatening” injuries on him which required treatment in hospital for one and half months. After he recovered, the Applicant made enquiries and learned that the gangsters were close associates of his uncle who was wealthy and had influence over politicians, local police and gangsters in the Applicant’s home area.
8. The Applicant made a report to the police, but the police took no action. He concluded that it was unsafe to remain in his home area. On his grandfather’s advice, the Applicant left India for the United Kingdom on the pretext of studying there.
9. After approximately three years, the Applicant returned to India, thinking that his uncle had forgotten about the land issue. But two or three weeks after his return, he began to receive anonymous telephone calls enquiring his whereabouts and threatening to kill him.
10. One night, the gangsters broke into his home and beat him with chairs and hockey sticks and stabbed him. He suffered serious injuries and fell unconscious. He was hospitalised for 20 to 25 days for his injuries, which included wounds to his left eye and right leg which required stitches. After his recovery, he fled to Hong Kong with financial assistance from his relatives.
11. While in Hong Kong, the Applicant was informed by his step-mother who maintained telephone contact with relatives in India that his uncle was still looking for him and would send gangsters to kill him. He did not consider state protection and internal relocation viable options to prevent or avoid the harm from his uncle.
12. However, in July 2015, the Applicant returned to India. He did not return home, but travelled to different parts of India. He returned to Hong Kong in October 2015.
The finding of the Board
13. The Applicant testified at the hearing. The Board found his evidence generally vague and lacking in detail and specificity, particularly regarding his claim that his uncle was behind his alleged ill-treatment. It also found inconsistencies and implausibilities in other aspects of his evidence, in particular his testimony concerning his interaction with his Hong Kong lawyer. His evidence over time about his whereabouts following his return to India from Hong Kong in July 2015 was completely contradictory. He failed to make prompt and full disclosure of material facts, including his prior visit to Hong Kong between June and July 2015 and his consultation with his lawyer arranged by his step-mother during that visit. He was also unable to explain why he did not disclose his fears to his lawyer in Hong Kong. He also made a first time allegation that his uncle personally threatened him. In conclusion, the Board had serious concerns about the Applicant’s credibility. It did not believe and rejected his claims that (i) gangsters assaulted him in India on the directions of his uncle; (ii) that his uncle threatened him personally; (iii) that he reported his alleged ill-treatment by his uncle’s associates to the police; (iv) that he fled India on two occasions because he considered his life to be in danger there from his uncle and/or his associates. Accordingly, the Board found the Applicant had failed to prove the factual basis of his claim for non-refoulement protection under any of the four applicable grounds under the USM and dismissed his appeal.
The legal principles applicable to judicial review
14. 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[6]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
15. The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review. In his supporting affirmation, he exhibited the Decision and said he would be in a position to submit the rest of the documents upon his release from Castle Peak Bay Immigration Centre. Not only did he not submit any documents after his release, he did not even inform the Judiciary of his residential or correspondence address. He did not even attend the hearing.
Discussion
16. 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. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.
17. 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; and observed a very high standard of fairness. The Board found the Applicant not credible. Basically, the Applicant failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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 errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
18. For the above reasons, leave to apply for judicial review was refused.
Dated 1st day of June 2022.
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(Allen LEE)
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent to the Applicant
on 1/6/2022
Ajaypal Singh
Applicant’s ref. no:
Nil. |
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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 1/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13626/18/9/387/IN2697
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3185/18 (Formerly RBCZ 12376/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] In his NCF, he said the attack occurred in 2014. He changed that to 2012 during the screening interview.
[6] [2018] HKCA 524 at para 14(1)
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