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

HCAL 381/2021

[2021] HKCFI 1612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 381 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;

1.  Leave granted for the Applicant to file the Application; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant seeks leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 20 October 2020 (the “Decision”).   The application was made on 15 March 2021.  It was almost two months late.  The Applicant explained that he was in prison custody when the Decision was issued.  It is confirmed from enquiries with the Board that the Decision was sent to his residential address while the Applicant was incarcerated.  The Court accepted that as a reason for the delay and granted leave to file this application out of time.

2.  The Applicant is an Indian national.  He entered Hong Kong as a visitor on 20 February 2015 and then overstayed.  Then, he surrendered to the Immigration Department.  On 18 June 2015, he applied for a non-refoulement protection claiming that he is in danger of being harmed by a group of attackers, one of whom had police and political affiliations.

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 Decision dated 5 June 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims.  On 12 June 2018, 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 20 October 2020. 

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 which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant said he was attacked and robbed by three persons in December 2013 while he was on his way home from work.  He reported to the police, but there was no follow up.  He was attacked again by a group of assailants, one of whom he recognised was involved in the first attack.  That assailant was a locally known gangster with police and political affiliations.  After the attack, he received telephone threats.  He reported the matter to the police but to no avail.  Then he fled to Hong Kong.

The finding of the Board

6.  The initial statement submitted by the Applicant with the non-refoulement claim form was extremely brief and provided almost no detail.  His screening interview was also remarkably brief and no attempt was made to test any of the assertions contained in his very brief written statement.  The Board considered it necessary to question the Applicant in order to establish the facts of the claim.  Despite due notice having been given to him to attend the hearing, he did not turn up.  He was asked to provide explanation for his failure to attend and he declined.  Accordingly, the Board made the Decision on the basis of the documents available to the Board without an oral hearing.

7.  The Board reminded itself of the legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof, in particular the relatively low standard which a non-refoulement claimant has to discharge.  It referred to the relevant part of UNHCR’s Handbook on the Procedures and Criteria for Determining Refugee Status which sets out an asylum seeker’s obligation in assisting the decision maker in ascertaining and evaluating the facts in support of his non-refoulement claims.  These obligations include:

(1) To tell the truth and assist the examiner to the full in establishing the facts of his case;

(2) To make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence.  If necessary, he must make an effort to procure additional evidence; and

(3) To supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts.  He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

8.  The Board identified a number of serious concerns in the Applicant’s case.  First, the Board wished to ask the Applicant why he thought what appeared to be a simple, criminal robbery carried out by persons he did not know had any significance for his general safety; what steps he had taken with the police; what follow up he carried out; and whether he took the matter further than just making one report to a local police station.

9.  Second, the Applicant appeared to suggest that the second attack was targeted rather than a random one.  The Board wished to know who the attacker whom he recognised was; how he knew him and what was the alleged grudge he had with him.

10.  Third, the Board needed elaboration from him about the gangster as being affiliated with the police and political leaders; his knowledge of this alleged fact; its relevance; and how it affected the Applicant’s actions.

11.  Fourth, how the Applicant knew his location had been discovered once he left his home area and why he believed this was anything other than a coincidence.

12.  Fifth, the Applicant’s claim appears to amount to a fear of general criminality for no particular or minimally explained personal reasons.  The Board wished to be informed of more facts, if that was not the case.

13.  Sixth, the Board wished to understand the details of all the alleged attacks and reports to the police and to ask some probing follow up questions.

14.  Lastly, the Board wanted to have an explanation why the Applicant did not seek protection soon after having arrived in Hong Kong.

15.  The Board acknowledged that the Applicant’s burden is only to prove his case to a relatively low standard.  However, as the Applicant declined attending the oral hearing and to give any explanation for its absence, the Board was unable to address its concerns about the above important aspects of the Applicant’s case.  The Board held at paragraph 33 of its Decision:

“33. The burden upon the [Applicant] in terms of his factual claims is a relatively light one as set out above, but it cannot be discharged merely by making a set of limited written assertions, which are untested and contain no real detail. The [Applicant] decided to appeal against the decision made by the [Director] and in order to discharge his part of the “shared” burden of proof, was required to attend to give evidence, to answer my questions and to deal with matters such as those set out above. His failure to do so and to provide any explanation for that failure, leads me to conclude no credence can be attached to his mere assertions.”

16.  For the above reasons, the Board held that the Applicant has failed to establish the factual case to support his non-refoulement claim on any of the four applicable grounds.

Grounds for judicial review

17.  The Applicant advanced the following grounds of application in his supporting affirmation:

(1) The Decision was not reasonable and unfair.  The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.

(2) The Director failed to give proper weight to the presence of state acquiescence.  He was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3) The Director failed to take such (above) arguments into account.

(4) This was a clean case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in his country is still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test.

Ground (1) – Unreasonable and unfair

18.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance and mentioning right to life and the extra-judicial killing which he would face if returned to India.  These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM.  The question is whether the Applicant meets those criteria.  The Board was of the opinion that the Applicant did not.  The Applicant disagrees and complains that the Decision was unfair and unreasonable.  Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. 

19.  The essence of the Applicant’s ground is that the Decision is unreasonable and irrational.  But he did not give particulars as to why the Decision is unreasonable and irrational.  At the hearing, he was asked to particularize in what way was the Decision unreasonable and unfair.  All that he could say were that he does not like the Decision; that his life is still in danger; and that the position is not in his favour.  

20.  The Board gave full reasons for its findings. Basically, the reason is the Applicant failed to discharge the burden of proving his fears and risks.  He failed because he declined to attend the hearing of the Board to answer the questions to be raised by the Board and explain the reasons for his absence.  In his grounds of application for judicial review, the Applicant never disputed the Board’s allegation that he did not attend the hearing or gave any explanation why he did not or complained that he never received the notice of hearing.  The Board had serious concerns about the lack of details in the Applicant’s case.  It wished to ask him questions in a joint endeavour with him to establish his claims to non-refoulement protection. The Applicant’s absence and silence did not help remove those concerns.  The Board refused to accept what essentially are empty assertions and came to the conclusion that the Applicant was unable to discharge his burden of proof even to the relatively low standard.  The Board’s findings could not be criticized as unfair or unreasonable.

21.  As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is again another unsupported bald assertion.  The Director’s Notice was issued on 5 June 2018. Within a week, he was in the position to lodge his Notice of Appeal with formulated grounds of appeal.  The oral hearing was scheduled to be heard on 20 July 2020.  In between, he had more than two years to arrange the evidence. Besides, he must have submitted all evidence he had to the Director before the screening interview and the evidence was contained in the appeal bundle which basically consists of his non-refoulement claim form and submission and the transcript of the record of his screening interview.  If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so.  It lies very ill in his mouth to say he did not have sufficient time when he chose not to attend the hearing and not to explain why he did not attend.  This ground has no conviction at all.

Grounds (2) and (3) – State acquiescence and torture at the behest of state law enforcement agencies 

22.  These two grounds may be dealt with together. For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account. The only torture or ill-treatment he ever received was the two assaults and robbery in which he suggested that one of the assailants was a gangster with police and political affiliations.  The Board precisely wished to ask him questions about this allegation in the joint endeavour to prove his case.  But he did not attend the hearing.  What was left of his evidence is just an empty assertion to which the Board was entitled not to attach any weight.  This ground is absolutely frivolous and vexatious.

Ground (4) – Unfair attitude and breach of high standard of fairness

23.  Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant argues that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test. He did not give particulars of unfairness and breach of duty.  In his favour, the Court assumed that included at least the failure to take into consideration the corruption and incompetency of the administration in his country in giving him protection for his safety. 

24.  For good reasons the Board found that the Applicant had failed to prove his fear and risk of harm was genuine.  On this finding, there is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds.  His claims were dismissed on that basis.  In other words, the Applicant is not at risk at all.  The Board did not find it necessary to consider availability of state protection and internal relocation.  It is only in respect of these two issues that corruption and incompetency of the administration may have relevance.  There is no substance in this ground.

Conclusion

25.  For the above reasons, none of the grounds advanced by the Applicant has substance.  In overall terms, the Applicant is in fact attempting to challenge the Board’s findings of facts under the guise of judicial review.  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.  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[5].

26.  On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria entitling him to non-refoulement protection on any of the four applicable grounds.   The Board gave reasons for its Decision.   These are findings 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.  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 burden of proof and standard of proof, 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 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. 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 four applicable grounds.  The Decision was utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave was granted for the Applicant to file the application out of time; but leave to apply for judicial review 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

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)