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

HCAL 3833/2019

[2022] HKCFI 648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3833 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 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 December 2019 (the “Decision”); and (2) his application by way of affirmation filed on 16 December 2021 to withdraw that application (the “withdrawal application”).  

The Applicant’s case

2.  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 and his written representation. 

3.  The Applicant is a national of India.  From 2012 to 2016, he operated a business called BNS Trading Company dealing in resale of mobile phones from China and Hong Kong to India.  In around March 2016, he had a cargo of mobile phones from Hong Kong confiscated by the Indian Customs authorities and suffered a loss of around one million Indian rupees.  He borrowed 1.5 million Indian rupees from a wealthy man named Davinder Singh (“Davinder”) who was the president of the Samiti (ie ward) Sidhwan Bet and also a legislator of the Shiromani Akali Dal (“SAD”).  The loan agreement was entered between Davinder and the Applicant’s father on his behalf.  The loan was to be repaid in a year.

4.  In August 2016, the Applicant partnered with a Chinese friend known to him as Johan.  He does not know Johan’s full name. Johan persuaded him to give his money to Johan to purchase phones in Hong Kong and ship them to China for the Applicant.  However, Johan disappeared with his money.  He suffered a loss of 1.5 million Indian rupees.

5.  In early October 2016, Davinder and four unknown men visited the Applicant.  Davinder demanded repayment of the loan in mid-October and threatened to kill the Applicant if he did not repay.  The Applicant made a complaint to the Jagraon Police Station, but the officer did not formally accept his complaint.  The Applicant believes that was because of Davinder’s political connections.

6.  In mid-October 2016, when he was on his way to the farmland, the Applicant was surrounded by five men armed with wooden sticks.  The men asked him about the repayment.  When he explained that he had no money to repay, the men assaulted him with wooden sticks until he fell unconscious.  He suffered bruises, scratches and open wounds. He was sent to Jagraon Civil Hospital by his neighbours where he received treatment, including stitches and skin grafting.  The police made some inquiries, but soon they stopped investigation.  Again, the Applicant believes that was due to Davinder’s influence.

7.  The Applicant was hospitalised for a week.  Then he went to stay with his cousin Jagminder Singh (“Jagminder”) in Delhi.  In late October 2016, Davinder’s men went to the Applicant’s parents’ home to look for the Applicant.  They threatened to pose further harm to his parents.  Out of fear, his parents disowned him and cut off all ties with him.

8.  On 3 November 2016, the Applicant travelled to Mainland China.  While he was in Shanghai, he was approached by two unknown men who punched him and warned him that he could not hide from Davinder.  The Applicant managed to escape.  Later, he learned that Jagminder had told Davinder his whereabouts under threat.

9.  On 13 November 2016, the Applicant sneaked into Hong Kong.  According to the Immigration Department’s record, the Applicant had been to Hong Kong seven times between 9 August and 5 November 2016, and was refused permission to land on every occasion.

The finding of the Board

10.  The Applicant gave evidence at the hearing before the Board.  The Board analysed his evidence in great depths and found numerous inconsistencies.  These are set out in pages 14 to 22 of the Decision.  Based on the gaps, inconsistencies and other concerns in his evidence, the Board rejected the Applicant’s evidence in its entirety. Specifically, the Board found that the Applicant had not borrowed any money from Davinder or anybody else; there was no loan agreement whether between Davinder and the Applicant or his father; there was never harassment, threat or assault on the Applicant who need not leave his home and travel to Delhi or Mainland China to avoid the harm; the Applicant is not of any adverse interest to anybody in India; and that the Applicant does not owe money to anybody in India.  In conclusion, the Board considers there is not a real risk the Applicant would face any of the proscribed forms of harm should he return to India.  Applying the legal principles applicable to the four grounds under the USM to the above findings, the Board concluded that the Applicant has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  Hence, it dismissed the Applicant’s appeal.

The withdrawal application

11.  Then, on 16 December 2021, the Applicant apply by way of affirmation to withdraw his leave application.  The reasons stated in his affirmation are:

“I want to close my case. Now my life situation is good in my home country INDIA. So I want to go back in my home country.”

12.  That is only a statement of his intention to close his case because his situation in India is good; but not that it was safe for him to return.  There is no suggestion of any reasons why it is now safe when it was his case that he is at risk of harm and death.  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 5 January 2022 informing him that his application is adjourned to 26 January 2022 for hearing.  The Court also gave him directions to lodge a statement setting out:

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

(i)     whether his feared harm has been resolved; and

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

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 formal notice of hearing was also sent to him by post on 5 January 2022.

13.  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 within 22 days of his filing of the withdrawal application and to his address as given by him in his Form 86.  He had not informed the Court of any change of his address since or provided his address in the withdrawal application.  These mails were returned through the post on 24 January 2022 marked “refused”.  There was nothing to suggest the Applicant has changed his address or had not received the Court’s directions and notice of hearing.  Accordingly, his applications were determined on paper in his absence.

The withdrawal application

14.  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 moneylender, 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 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

15.  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[1].

16.  The Applicant had not advanced any grounds for his leave application.  His ground as stated in his supporting affirmation is that he was in fear of being harmed or killed by Davinder as he could not repay the loan.  That was a repetition of his case before the Board.  In the absence of any specific grounds of application, the Court could only focus on the usual challenges in a judicial review 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

17.  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] [2018] HKCA 524 at para 14(1)