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

HCAL 1054/2019

[2022] HKCFI 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1054 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 by the Applicant being absent in open court;

1.            The withdrawal application for leave to apply for Judicial Review refused;

2.            Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  There are two applications before the Court: (1) the Applicant’s application by Form 86 filed on 18 April 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 20 September 2016 (the “2016 Decision”); and (2) his application by way of affirmation filed on 6 January 2022 to withdraw that application (the “withdrawal application”).  

2.  The Applicant is a national of India.  He first arrived at Hong Kong on 16 March 2016 from Bangkok.  He was refused entry and removed back to Bangkok.  He next arrived in Hong Kong on 30 March 2016 and was again refused entry.  While arrangements were being made to remove him, he lodged a non-refoulement claim by way of two written representations with the assistance of a legal representative.

3.  The Applicant’s claim was assessed on all three applicable grounds then available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. His claim was dismissed by the Director in his notice of decision dated 15 June 2016 (the “Notice”). He appealed to the Board.  His appeal was dismissed by the Board on 20 September 2016 (the “2016 Decision”).  This is the decision in respect of which the Applicant is seeking a judicial review.

4.  On 14 September 2016, the Director invited the Applicant to submit on or before 28 September 2016 additional facts, in particular those relevant to BOR 2 Risk[4] ground, which he might have omitted due to any misunderstanding. The Applicant did not respond.  On 12 July 2017, the Director also rejected his application for protection under BOR 2 Risk ground (the “Further Notice”).   The Applicant appealed to the Board.  His appeal was dismissed by the decision of the Board dated 3 April 2019 (the “2019 Decision”).  The Applicant is not seeking a judicial review of the 2019 Decision.

5.   The 2016 Decision was made on 20 September 2016. It was not until 18 April 2019 that the Applicant sought judicial review of that decision.  He did not advance any grounds for the leave application in the Form 86 or in his supporting affirmation as required.

6.   Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay.  By 18 April 2019, his application is thirty-one months out of time. 

7.  Then, on 6 January 2022, the Applicant apply by way of affirmation to withdraw his leave application. The reasons stated in his affirmation are:

“I want to cancel my (JR) JUDICIAL REVIEW Because I want to go back INDIA Because My Problem in INDIA is solved. So Please cancle My (JR) JUDICIAL REVIEW.”

That is only a statement of his intention to cancel his case and to return to India, but not a valid reason for withdrawing the leave application in light of his claim for protection, appeal against the Notice and application for leave to apply for judicial review of the 2016 Decision. To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 24 January 2022 informing him that his application is adjourned to 10 February 2022 for hearing.  The Court also gave him directions to lodge a statement setting out:

(a)  the grounds for withdrawal of his leave application, stating in particular:

(i)     the outcome of his land dispute with his paternal uncles; and

(ii)   whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by his paternal uncles, if refouled.

(b)  His submission in support of the withdrawal application; and

(c)  Whether he wishes to have his application heard at an oral hearing.

He was also informed that the withdrawal application as well as his leave application, if the withdrawal application is refused, will be determined on paper, if he does not attend the hearing regardless whether the above directions have been complied with.  A separate formal notice of hearing was also sent to him by post on the same day.  The letter and notice have not been returned through the post.

8.  The Applicant did not respond and did not attend the hearing.  The letter containing the directions and the notice of hearing were sent to him to the address he reported to the Court on 23 May 2019.  He did not provide his address when filing the withdrawal application.  He obviously knew the obligation to report his change of address to the Court.  There is nothing to suggest the Applicant has changed his address or has not received the correspondence.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

The Applicant’s case

9.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, his case is that if returned to his home country, he would be harmed or even killed by his paternal uncles (“uncles”) because of their land dispute.

10.  The Applicant is a national of India, now aged 38. His paternal grandfather had left a plot of land (the “Land”) to his mother (“mother”) in his will.  In 2014, his uncles filed a case in the court in the district of Zilkla Bikaner claiming ownership of the Land and obtained judgment.  The Applicant’s mother appealed.  A judge with the initial “SDM” issued an interlocutory order allowing the Applicant’s mother to continue farming on the Land.

11.  Since then, the uncles threatened to kill the Applicant and his mother several times.  They also help themselves to the crops growing on the Land.  The Applicant and his mother made a report to the Khajuwala Police Station in relation to threats by the uncles.  After his uncles learned about the reporting, they threatened to make the lives of the Applicant and his mother miserable if the Applicant’s mother did not transfer ownership of the Land to them.  When his mother refused, the Applicant and his mother were attacked by his uncles.  The Applicant’s mother became blind as a result of her injuries. 

12.  The Applicant and his mother were treated in a government hospital for their injuries.  On 26 February 2016, the Applicant sent his mother to live with his brother in Raisinghnagar.

13.  The Applicant was then kidnapped by his uncles and ill-treated in their attempt to force him to persuade his mother to transfer the Land to them.  He was released when he pretended that he would agree to do so.  The Applicant’s injuries were treated in the Raisinghnagar Hospital.  Then he fled India to allow time for the conflict to subside. 

14.  The outcome of the appeal is still pending at the time of the 2016 Decision.

The finding of the Board

15.  At the hearing before the Board, the Applicant gave no supporting evidence in respect of the allegations in his case, such as his mother’s ownership of the Land, the litigation, the award of the Land to the uncles, the mother’s appeal, the interlocutory order by a judge with the initials of “SDM” etc.  He changed his evidence and denied he had ever asserted that “SDM” was a judge.  The Board found there was no reliable evidence that the uncles had connections with or influence over the village head or any public official or person able to wield the authority of the government; that the government and/or state and/or other authorities in India have acquiesced in the alleged ill-treatment of the Applicant; that the Applicant suffered physical and/or mental suffering of the requisite severity; that the alleged perpetrators ill-treated the Applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance; that the alleged ill-treatment of the Applicant had any relevance to the interest and/or benefit of the Indian government; that the state of India was unwilling to help the Applicant for a reason related to the 1951 Convention related to the status of Refugees (“Convention reasons”).  On the contrary, the Applicant admitted that the police from Khajuwala Police Station had administered a warning to his uncles showing that the authorities were prepared to take action on the complaint of the Applicant.

16.  Applying the legal principles applicable to the four grounds under the USM to the above findings, the Board concluded that the Applicant had failed to show he had a well-founded fear of being persecuted for a Convention reason.  His claim for protection under the Persecution Risk ground failed for that reason.  The Board also found the Applicant had not shown there are substantial grounds for believing that he would be subjected to a real risk of prohibited treatment - namely, torture, cruel, inhuman, degrading treatment or punishment.  His claims under BOR 3 Risk and Torture Risk grounds failed.

The withdrawal application

17.  Despite the Court’s directions, the Applicant declined to state his grounds for withdrawal or confirm that his alleged fear and risks of harm had been resolved or that he does not anticipate any real chance that he will be harmed or otherwise ill-treated by his uncles, if returned to India. The Court is skeptical of the reason for his withdrawal application. It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality or even procedural unfairness.  It would therefore be in the Applicant’s best interest to have his leave application determined in order to ensure that he would be allowed to continue his stay in Hong Kong if it is unsafe for him to return to his home country rather than to allow his withdrawal application and thereby depriving him the benefit of a screening of his entitlement to challenge the Decision by way of judicial review.Hence, the Court refused the Applicant’s withdrawal application and proceeded to determine his leave application.

The leave application

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].

19.  As the Applicant had advanced no grounds for his leave application as is required, the Court could only focus on the usual challenges such as whether the Decision was vitiated by errors of law, procedural unfairness or irrationality.  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 issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  It found that the Applicant had failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the three 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, unreasonableness and irrationality.  The Court could detect no 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.  The Decision is utterly without fault.  Accordingly, the Applicant’s application for leave to apply for judicial review was also refused.

Conclusion

20.  For the above reasons, the Applicant’s withdrawal application and leave application are 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] [2018] HKCA 524 at para 14(1)