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

HCAL 610/2021

[2021] HKCFI 1587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 610 of 2021

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 refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 12 March 2021 (the “Decision”). 

2.  The Applicant is an Indian national.  He sneaked into Hong Kong from Shenzhen and was arrested by the police in January 2020.   On 4 and 8 April 2020, he applied for non-refoulement protection claiming that he will be harmed or killed by his uncle (the “Uncle”) and his son (the “Cousin”), if refouled, because of their land dispute.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of the Decision dated 4 August 2020, the Director of Immigration (the “Director”) rejected his claims (the “Notice”).  He lodged an appeal to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 12 March 2021.  He now seeks for leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant’s father (the “Father”) and his Uncle inherited some farmlands from their father.  The Uncle is a member of the Congress Party.  Since 2017, the Father and the Uncle were in dispute over the boundary of their lands. The Applicant and his Father had a fight with the Uncle and his Cousin in 2018.  The Uncle cut the Father’s left arm with a sword.  The Applicant retaliated by cutting the Cousin on his left leg with a sword.  The two parties were sent to two different hospitals for treatment.  The Father had a surgery and was hospitalised for 15 to 20 days.  The Applicant had his wound cleaned and bandaged and was discharged.  A month or two later, the Applicant was arrested by the police because the Uncle had filed a complaint against him.  The Applicant was detained by the police for two or three days during which time he was assaulted by the police.  Through the mediation of the village panchayat, the Uncle withdrew his complaint.

6.  One day towards the end of 2018, the Uncle and two to three people waylaid the Applicant.  They assaulted him with sticks and the Uncle cut the Applicant’s right ear.  The Uncle threatened to kill the Applicant for wounding his Cousin.  Some neighbours came to stop the assault.  The Applicant suffered a fractured left arm and severe cut on his right ear.  He was hospitalised and discharged in two days.  He did not report to the police because of his experience over the previous incident.

7.  The Applicant’s parents told the Applicant that the Uncle was looking for him and threatening to kill him for having injured his Cousin.  They sent him for hiding first in Rajasansi and later to New Delhi.  Towards the end of 2019, the Applicant saw his Uncle in New Delhi.  Out of fear, he fled to Mainland China and then to Hong Kong.

The finding of the Board

8.  The Board seemingly accepted the Applicant’s evidence and proceeded to assess his claims under the four applicable grounds.  The Board identified the requirements under each of the applicable grounds which the Applicant has to proof; but held that he failed to prove those requirements.  Hence, it dismissed his appeal and confirmed the Director’s decision in the Notice.

9.  In respect of the Torture Risk ground, the Board held that the Applicant failed to prove two elements.  First, he failed to show that the acts or conduct of the Uncle had attained the degree of “severity” in pain or suffering to fall within the definition of torture as defined under section 37U(1) of the Immigration Ordinance: see paragraphs 39 and 61 of the Decision.  Second, the Uncle’s acts or conducts were purely for the purpose of avenging the injury the Applicant did to his Cousin arising from the land dispute: see paragraphs 39 and 62 of the Decision.  The ill-treatment was not inflicted for any of the listed purposes under the section by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  Though the Uncle is a member of the Congress Party, there is no evidence that the ill-treatment was inflicted by the government or with state acquiescence.  The Applicant bears the burden of showing that he would be in danger of being tortured and that the grounds for so believing are substantial and that such danger is personal and present.  But he failed.

10.  In respect of the BOR 2 Risk ground, only the state parties to the International Convention on Civil and Political Rights can violate the right of life in a non-refoulement claim: see paragraph 49 of the Decision.  A state may be in breach of this duty to protect the right of life by failing to provide protection.  The standard of protection is not an absolute one but that of a practical standard: Horvath v Secretary of State for the Home Department[5]. The Applicant had not provided any relevant materials and facts on BOR 2 Risk. He even said during the oral hearing that he had no such fear from the government of his home country: see paragraphs 145 and 146 of the Decision.  The Board therefore concluded that on the evidence there was no evidence that there is a personal and real risk of the Applicant being subjected to a BOR 2 Risk on his return to India.

11.  In respect of the BOR 3 Risk ground, a claimant who seeks to invoke protection under this risk must meet two requirements: the ill-treatment must attain a minimum level of severity and there is a genuine and substantial risk of his being subjected to such ill-treatment if refouled: see paragraph 52 of the Decision.  The threshold is very high.  The Board held that on the evidence, the ill-treatment in the past had not attained that level of severity and the Applicant has no genuine and substantial risk of being subjected to such ill-treatment should he be returned to India: see paragraphs 149 and 150 of the Decision.

12.  In respect of the Persecution Risk ground, the Applicant’s failure is obvious.  To invoke that ground, he has to prove a well-founded fear of being persecuted and his life or freedom threatened on account of his race, religion, nationality, membership of a particular social group or political opinion: see paragraphs 53 and 54 of the Decision.  However, it is the Applicant’s case that his fear arose out of his land dispute or his having injured his Cousin and not any of the above purposes.

13.  Besides, the Board also found that Applicant could prevent his risk by seeking police protection or avoid his risk by internal relocation. 

14.  In summary, the Board considered that on the basis of the Applicant’s evidence there was no real risk that he would face any of the proscribed forms of harm should he return to India.

Grounds for judicial review

15.  The Applicant has not advanced any specific grounds of application for judicial review.  In his supporting affirmation, he said:

“I don’t agree with the Decision of the Torture Claim Appeal Board. I want to file JR judicial review against them. I can’t go back to my home country because my life is still in danger over there.”

In essence, this is a challenge of the finding of facts of the Board under the guise of judicial review.  On the basis of his evidence, the Board found there was no real risk that the Applicant would face any of the proscribed forms of harm should he return to India.  Furthermore, the Board found that state protection and internal relocation are available to prevent or avoid the risk.

Disposition

16.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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].  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; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational. The Applicant’s claims were not reasonable arguable.  There was no realistic prospect of success in the intended judicial review.  Accordingly, leave to apply for judicial review was 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] [2001] 1 AC 489

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