PANDEY SUNIL KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2926/2018

[2022] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2926 of 2018

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 to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review.  In the Form 86, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) are named as the proposed respondent; and the decision in respect of which relief is sought is the decision of the immigration officer in the Notice of Decision dated 8 November 2017 (the “Notice”).  In his affirmation filed in support of his application, he exhibited a copy of the decision of the Board dated 17 December 2018 (the “Decision”).  It is obvious that his intention is to apply for leave to apply for judicial review of the Decision of the Board dismissing his appeal against the decision of the Director in his Notice.

2.  Furthermore, the Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures.  At the time of the filing of the Form 86, the Director’s decision in the Notice had been superseded by the Board’s Decision.  It is no longer susceptible to judicial review: Re Moshsin Ali[1]. Accordingly, leave was granted to amend the Form 86 by substituting the Decision of the Board as the decision in respect of which relief is sought.

3.  The Applicant is an Indian national, now aged 41.  He entered Hong Kong on 29 November 2014 as a visitor and was permitted to remain until 13 December 2014.  He over-stayed and was arrested on 16 December 2014.  On 17 December 2014, he raised a non-refoulement claim. 

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now seeks leave to apply for judicial review of that Decision.  The Applicant did not request an oral hearing.  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 without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that, if returned to India, he will be killed by his uncle because of their land dispute and by two others because of a monetary dispute.

6.  The Applicant was born in Uttar Pradesh, India.  His late grandfather left a plot of land (“Land”) to his father and uncle.  In around 2004, he and his father decided to farm on his father’s portion of the Land.  But his uncle and 3 to 4 villagers asked his father to stop.    They had an argument but no one was harmed in that incident. 

7.  In around 2006, his father and uncle had another argument over the Land.  His uncle and villagers assaulted him and his father.  The Applicant and his father sought treatment in a private clinic.  His father told him not to report to the police because his uncle, being a member of the Samajwadi Party, was connected to the ruling Bharatiya Janata Party (“BJP”)and the head of the village committee.  They did not encounter any more attack from his uncle because he and his father avoided going to his uncle’s village after the incidents.

8.  In 2013, the Applicant started a chit fund with 12 businessmen.  Four of the businessmen defaulted contributing to the fund.  The Applicant attended a meeting with them in September 2014 to resolve the dispute.  He was surprised to find his uncle was also present.  Two of the four businessmen, Ajay and Rahul, attacked him.  Rahul threatened to kill the Applicant unless the Applicant paid him INR 1 million and transferred ownership of the school he owned to Rahul.  The Applicant said he would make a report to the police.  Rahul replied that his report would not be successful because Rahul was connected with the police.  Both Rahul and Ajay were active supporters of the ruling party and they had connection with the councillor of the ruling party.  The Applicant believed that the meeting and the default by the four businessmen in his chit fund were orchestrated by his uncle.  

9.  The Applicant went to the Rikabganj Police Station to report the incident but the officers turned him away, saying they would not file his report.  The Applicant did not seek medical attention because he only suffered minor injuries.

10.  On 15 January 2014, the Applicant was taken to see Rahul.  Rahul forced him to sign on a blank piece of paper.  The Applicant refused.  Rahul along with two unknown persons beat him with a wooden stick, slapped his face and punched him in the stomach.  Two hours later, they asked him to sign.  Again he refused.  He was assaulted and beaten for the whole night.  He relented in the morning and signed out of fear for his life. 

11.  Then, they took the Applicant to the Hasnu Katara Police Station.  The Applicant believed that was because the principal of his school had informed his father about the incident and his father filed a police report.   But the officer in that station refused to file his complaint.

12.  On 17 January 2014, the Applicant filed a complaint at the District Magistrate’s office against Rahul for unlawful detention.  A couple of days later, he asked about the progress of his complaint at the Rikabganj Police Station but was informed that the police had no knowledge about his complaint.  The Applicant believed the magistrate court had taken no action on his complaint.  Out of fear, he moved to live with his friend in Himachal Pradesh for three months.

13.  One day in March 2014, Rahul called the Applicant and told him to come to Rahul’s office or the principal of his school would be tortured.  When the Applicant arrived at Rahul’s office, he saw Rahul and Ajay.  Rahul repeated his demand for 1 million Lakhs and ownership of the school.  The Applicant refused.  Thereupon, they threatened to kill him.  They also yelled foul language at him.  The Applicant returned to Himachal Pradesh and decided to leave his village. He was not assaulted during this incident.

14.  Thereafter, the Applicant received many threatening calls from Rahul.  Then, he went to Chandigarh.  He found a job at Zara and worked for about five months.  Even though he kept changing his phone number,Rahul managed to reach him on the telephone and threaten him.  Then the Applicant left India on 27 November 2014 for his life.

15.  The Applicant’s father died on 7 December 2014.  He lost contact with his family in India in January 2016.  His wife told him that she has applied to divorce him.  He then married a Filipino woman in Hong Kong.  His school principal told him in around 2016 that Rahul and Ajay continued looking for him in the school and that his uncle had taken over his father’s portion of the Land.

The finding of the Board

16.  The Board found multiple, material inconsistencies and implausibilities in the Applicant’s claim which weighed against his credibility.  It found the Applicant was making up evidence at the hearing.  It found the Applicant was not a credible witness and rejected his evidence.   

17.  The Board did not accept the Applicant had a land dispute with his uncle.  It found the Applicant’s evidence about the chit fund confusing, unconvincing and doubted if he was involved in the chit fund.  The Applicant was unable to explain why Rahul did not cash the blank cheque given to him by the Applicant but instead attempted to extort INR 1 million from him.  He was unable to explain why he included Rahul and Ajay and the two other defaulting businessmen into his chit fund.  The Board also found it incredible that he opened and owned a school and included the words “public school” as part of its name.  The tax document which he used to support his claim of having made a complaint to the magistrate showed that his business was selling soap and SIM cards and not that he was the owner and operator of a school.  In the end, he also changed his evidence about having made a complaint to the magistrates’ court.  The Board found that the Applicant fabricated these claims.  It did not accept that he faced any risk of harm from his uncle, Rahul, Ajay and supporters of the ruling political party BJP or the Samajwadi Party.  Accordingly, the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection and dismissed his appeal against the decision of the Director in the Notice.

The legal principles applicable to judicial review

18.  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, in the absence of 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 of judicial review

19.  The Applicant did not put forward any grounds of judicial review in his Form 86.  In his supporting affirmation, he reiterated that he had been threatened by his uncle and that his life is in danger in India.  He had been invited by the Court via its letter dated 14 October 2020 to inform the Court of his first language, contact number and to file submissions.  He responded but made no submission.   

Discussion

20.  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 disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is challenging the Board’s finding of fact that he would not face any real harm or risk if returned to India, which is impermissible except for error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.   

21.  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 to be an untruthful witness who had fabricated his case in an attempt to enhance his claim for protection and to extend his stay in Hong Kong.  It rejected his account because of the numerous and significant inconsistencies in his evidence.  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 three remaining grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  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 does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

22.  For the above reasons, 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] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

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