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HCAL 3643/2019
[2023] HKCFI 2567
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3643 of 2019
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Sukhdev Singh |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 of the decision of the Director of Immigration (the “Director”) dated 27 November 2019.
2. Enquiries with the relevant authorities revealed that the Director had not made any decision dated 27 November 2019 in respect of the Applicant, but had issued a Notice of Determination dated 13 February 2012 rejecting his claim for non-refoulement protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”) and a Notice of Decision dated 24 July 2018 (the “Notice”) rejected his claim for protection under the Unified Screening Mechanism (the “USM”). Further, the Applicant had appealed the Notice but his appeal was dismissed by the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 November 2019. 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[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. In the circumstances, it is obvious that the intention of the Applicant is to seek judicial review of the Decision of the Board dated 27 November 2019 and not the decision of the Director in the Notice. Hence, leave is granted to amend the Form 86 by substituting the Board and its Decision for the Director and his decision as the proposed respondent and the decision in respect of which relief is sought.
3. The Applicant is an Indian national. He arrived in Hong Kong as a visitor on 28 October 2004 and overstayed since 12 November 2004. He made a CAT Claim by written representation dated 12 March 2007. His CAT Claim was rejected by the Director and his appeal against that decision was dismissed by the Adjudicator (Torture Petitions) on 4 June 2012. Those decisions are now final. He then made a non-refoulement claim under the USM. In due course, his non-refoulement claim was assessed on the three remaining applicable grounds under the Unified Screening Mechanism, namely: BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5] grounds. His claim was dismissed by the Director’s Notice. His appeal against that Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision of the Board. He 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 that his leave application may be justly determined on paper without an oral hearing.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the questionnaire he submitted in relation to his CAT Claim, record of three interviews, his supplemental claim form prepared by him with assistance of the Duty Lawyer Service. In gist, his claim is based upon his fear that he will be harmed or killed by Paramjit Singh, Soni and Laddi (the “Abusers”), if refouled to India,
5. The Applicant, now aged 47, was born and brought up in District Kapurthala, Punjab, India. He received eight years of formal education. He is single. His parents and two siblings are currently living in India. He was a supporter of the Congress Party. One late afternoon on 13 August 1987, while he was 12 years’ old, he ran into the Abusers who were five to ten years older than he. They pushed him into a dark corner and abused him physically and sexually. Between 1987 and 1990, he had been thus abused for about 15 times.
6. His Abusers were rich and their parents were supporters of the Shiromani Akali Dal Party (“SAD”) and were well connected with it. The Applicant did not inform his parents about the abuses or report the abuses to the police or seek medical assistance because the Abusers threatened to kill him if he did so. However, he reported to the village head who advised him not to make any complaint if he wanted to be safe because Laddi’s aunt was a powerful local figure and a member of the Municipal Committee of District Kapurthala, whereas he was from a poor family. The village head, nevertheless told Laddi about the complaint. Then, the Applicant was beaten and tortured by the Abusers and threatened that if he made further complaints his whole family would be killed.
7. Laddi’s aunt once forced the Applicant to vote for SAD in 1996, but the Applicant refused. He was then tortured by his Abusers. The Applicant was afraid that with her political influence Laddi’s aunt could get him framed in false cases.
8. The Applicant lived in deep sadness as people in the village laughed at him because of the incidents of abuses and wanted to commit suicide. Nothing eventful happened since 1989. The abuses ceased since 1990, but the Abusers continued to use foul language at him and screamed at him.
9. The Applicant believed he was abused because his Abusers were of “higher caste” and jealous of his skill in the game of Kabaddi.
10. To avoid any further trouble, the Applicant came to Hong Kong on 28 October 2004 and then sought protection. While in Hong Kong, he was told by his father that his Abusers were still sending people to his home asking for his whereabouts and that Laddi’s aunt remains influential in the government despite she is no longer a member of the Municipal Committee.
The finding of the Board
11. The Applicant testified before the Board. Despite the Board had reservations about his credibility, it assessed his claim on the basis of the case as he asserted.
12. According to the Applicant, the abuses ceased since 1990; and between 1990 and 2004 nothing eventful happened except for some verbal exchanges between him and his Abusers and one assault which the Applicant attributed to have been instigated by Laddi’s aunt. In view of that, the Board found the Abusers no longer had any strong motive to cause harm to the Applicant. It is all the more unlikely after the Applicant had left India for 15 years that the Abusers will risk criminal sanction by inflicting violence on him again. Hence, the Board found there is no substantial ground for believing that the Applicant will suffer severe ill-treatment or serious harm upon refoulement.
13. On the basis of authoritative and credible country of origin information, the Board found that despite there are problems and corruptions in the Indian police, the government has taken positive measures to remedy the deficiency. There is no evidence that the police would be bribed or influenced by any powerful or political parties not to afford protection to the Applicant. The Board found adequate state protection accessible. It was the Applicant who chose not to make a report to the police about the abuses and threats. Likewise, the Board found internal relocation to avoid the harm or risk of harm feasible. Hence, it found the Applicant had failed to prove his entitlement to protection under BOR 3 Risk ground.
14. In respect of his claim under Persecution Risk ground, the Board found that the Applicant’s dispute with the Abusers cannot be attributed to his membership of a particular social ground (one of lower caste in India). There was no evidence that the feared ill-treatment would be on account of the Applicant’s race, religion, nationality, membership of a particular social group or political opinion protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground. More importantly, the Abusers are not the state authority or a significant portion of the population of India, a necessary element which a claimant must proof to establish this ground.
15. In view of the Board’s finding that the Abusers will be unlikely to harm the Applicant again, the Board found the Applicant’s life would not be at risk under BOR 2 Risk ground. Furthermore, his risk would be further reduced or avoided because of availability of state protection and internal relocation.
16. For all these reasons, the Board found the Applicant had failed to establish his claim to protection under the BOR 2 Risk, BOR 3 Risk and Perseuction Risk grounds and dismissed his appeal against the Director’s Notice of Decision.
Legal principles applicable to judicial review
17. 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].
Grounds for judicial review
18. The Applicant had not advanced any grounds for judicial review in the Form 86. In his supporting affirmation, the only ground he advanced was that the Board failed to consider all the matters raised in his claim and give adequate reasons for its Decision. In effect, the Applicant is seeking to challenge the Board’s finding of fact and of law that he would not face any real harm or risk of harm if returned to India. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
Discussion and conclusion
19. In the absence of specific grounds of application, the Court in an application for judicial review 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.
20. 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 relating to the three remaining applicable grounds 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 assessed the Applicant’s claim on the basis of the case as he asserted. The Applicant could not have any valid complaint on these findings of fact by the Board. It was on the basis of these findings of facts that the Board found the feared risk of harm unlikely to materialize, that state protection is available and that internal relocation is feasible. Hence, the Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the remaining three applicable grounds. The Board gave full and good reasons for its findings. These findings of facts are exclusively within the province of the Board to make, 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 not detect any 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. The proposed judicial review has no realistic prospect of success.
21. For the above reasons, leave to apply for judicial review is refused.
Dated 5th day of October 2023.
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(Allen LEE) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 5/10/2023
Sukhdev Singh
Applicant’s ref. no: Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5/10/2023
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12785/18/8/55/IN2543
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2115/18 (Formerly RBCZ 2000122/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] s37ZR of the Immigration Ordinance, Cap 115
[2] [2018] HKCA 549
[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 [14(1)]
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