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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 May 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 May 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 November 2018 (the “Notice”)  refusing his application for non-refoulement protection. 

Background

2.  The Applicant is an Indian national, now aged 43.  He arrived in Hong Kong on 10 February 2016 and overstayed since 25 February 2016 when he surrendered to the Director.  Then he lodged a non-refoulement claim by written signification on 8 August 2016.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed, if returned to India, by three drug traffickers (the “three traffickers”) in his village for refusing to join in their drug trafficking business and by his cousin and his cousin’s two sons because of a land dispute.

4.  The Applicant’s case as stated in his non-refoulement claim form (“NCF”) is that he lived in a village in Cheema Kalan near the Indian border with Pakistan where many people trafficked in drugs.  One day in May or June 2015, the three traffickers asked him to participate in their drug business.  He refused.  A few months later, they sent five villagers to his home and beat him up.  They also threatened to kill him if he did not join in their business.  He made a report to the police, but the police did not listen to him.  Then his family sent him to stay with his maternal uncle, Surjit Singh, in Mari Mega 30 kilometres away from his home.  Soon, he learned that his uncle also trafficked in drugs.  His uncle also asked the Applicant to help him in his drug business.  Thus, he returned to his village in Cheema Kalan after a month.  He produced a copy of a news article describing the arrest of the three traffickers as supporting evidence.

5.  The Applicant’s father and his uncle had inherited a piece of farmland (the “farmland”) from his grandfather.  Subsequently, his uncle sold his share of the farmland to his father.  After his uncle died in 2015, his son, ie the Applicant’s cousin, took over the farmland by force because it had appreciated in value.  His cousin and his two sons assaulted him and his brother with wooden sticks and caused them bruises all over their bodies.  The Applicant reported the incident to the police, but the police refused to take his complaint.  He believed that was because his cousin and his sons belonged to the (Shiromani) Akali Dal Party (the “SAD”) which was very powerful and supported by the police though they were not the current ruling party.   

The finding of the Board

6.  The Applicant testified before the Board.  The Board found numerous significant discrepancies in his evidence which suggest the account in his NCF was not a true account of what he had experienced.  The significant inconsistencies in his evidence and implausible assertions caused the Board to question his truthfulness and credibility.  When confronted with the discrepancies and inconsistencies, the Applicant only apologised and said he forgot but could not provide any cogent or plausible explanation.  The Board did not find him credible and did not accept his evidence.

7.  His account of the assault by the three traffickers given in his testimony before the Board is significantly different from that given in his NCF.  He told the Board that as soon as he refused to join, the three traffickers assaulted him and that took place while he was walking home from the farmland.  This is inconsistent with his account in the NCF in time and place of the assault and the presence of the three traffickers during the assault.  Then, he told the Board that his family sent him to live with his maternal uncle Buta Singh in Bekhwind for six to eight months during which time he helped his uncle with his farm.  This is inconsistent with his account in the NCF that he was sent to live with his uncle Surjit Singh in Mari Mega who asked him to help in his drug business and that he only stayed there for one month.  When confronted with the inconsistencies, he apologised and said he could not remember.  He did not appear to know Surjit Singh and suggested that Surjit Singh was related to his mother, but could not say how they were related.  But his earlier evidence was that his mother has two brothers, Buta and Balbir Singh in Bekhwind and his father has no siblings. 

8.  The Applicant alleged that the three traffickers forced him to join their drug business, but could not explain why they wanted him to join.  Other than saying that they were his friends from the neighbourhood and that sometimes they had meals and tea together, he did not have any information about their families and did not know what their occupations were before they became involved in drugs.  The Board considered his evidence about the three traffickers was insufficiently textured or nuanced to appear real.  It did not appear that he really knew them.  

9.  As for the land dispute, his testimony before the Board was that his father was raised in Cheema Kalan and did not have any siblings.  This totally discredited his claim about his land dispute with his cousin and his sons. 

10.  Having failed to prove the factual basis of both limbs of his claim, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

11.  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[6].

Grounds for judicial review

12.  The Applicant did not advance any grounds for judicial review in his Form 86 or his supporting affirmation.  At the hearing, after the legal principles in the preceding section were explained to him, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality.  He only reiterated that the land dispute with his cousin is not resolved and he wanted to stay longer in Hong Kong.  In effect, he is disputing the Board’s finding of fact that he had failed even to prove he had a land dispute with his cousin or that his cousin existed.  This is not permissible in an application for judicial review.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on errors of law, procedural unfairness and irrationality in the Board’s Decision.

Overall scrutiny

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense and inherent probability. 

14.  The Board found numerous significant discrepancies between the Applicant’s evidence in his NCF and his testimony before the Board which caused the Board to doubt the credibility of his account.  He was given opportunity to explain the inconsistencies, but he failed.  The Board found his account could not have been a true account of what he had truly experienced.  It found him incredible.  His account of the threat and assault by the three traffickers and his flee to live with his uncle is so inconsistent that the Board found it could not have been an account from his true experience.  His claim about the land dispute was wholly discredited by his own evidence that his father did not have any siblings to give him an uncle and a cousin to threaten him.  On the evidence, it was open to the Board to make those findings of fact.  The findings are largely finding of fact solely for the Board, which the Court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the Decision.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This are mixed finding of fact and of the law.  Insofar as these are findings of the law, they are absolutely correct.  Insofar as these are findings of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

15.  For the above reasons, the Applicant’s leave application 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