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HCAL 2336/2019
[2025] HKCFI 819
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2336 of 2019
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BETWEEN
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Jagmeet Singh |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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:
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 14 August 2019 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 8 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 April 2018 (the “Notice”), refusing his non-refoulement application.
Background
2. The Applicant is an Indian national. He last entered Hong Kong on 16 April 2015 as a visitor and overstayed since 1 May 2015. On 6 May 2015, he surrendered to the Immigration Department and filed a non-refoulement claim on 6 August 2015.
3. In due course, his non-refoulement 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 application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview (the “ROI”) in the presence of his lawyer. In gist, he claims, if returned to India, he will be harmed or killed by his neighbour (the “Neighbour”) because of a land dispute.
5. The Applicant, now aged 37, had received twelve years of formal education and had four years’ experience working as a farmer. He is single. His parents and two siblings are living in India.
6. The Applicant’s father had three plots of farmland, one of which (the “Land”) was adjacent to the farmland of the Neighbour. His Neighbour was a fellow farmer in the village, and was closely connected to the head of the village council. Since the Applicant’s siblings did not do any farming for the family, his father indicated that the three plots farmland would go to him.
7. One day in March 2009, when the Applicant was working on the Land, the Neighbour suddenly approached him and demanded the Applicant to give him the land as he wanted the land for expansion. The Applicant refused. His Neighbour then left without pursuing the matter further.
8. One day in April 2009, his Neighbour and three unknown men approached him when he was farming on the Land. His Neighbour told him that the three men would take the land from him immediately. He refused. His Neighbour became angry. His Neighbour and the three men assaulted him with wooden sticks. He shouted for help and some villagers came to stop the fight. Before leaving, his Neighbour threatened him that he would not be so lucky next time. The Applicant went to a local clinic for medical treatment. The next day, he reported the case to the police, but the police refused to register his complaint. He told his father about the assault. Worried about his safety, his father decided to send him to study in Cyprus. For the two months while he was waiting for his student visa, he hid in the Bangla Sahib Sikh Temple in New Delhi.
9. The Applicant was unable to pay the tuition fees for his course in Cyprus, but his father advised him not to return to India because his Neighbour was still looking for him. He therefore overstayed his student visa until September 2014 when he was arrested by the Cyprus authority. He was repatriated to India on 17 September 2014.
10. The Applicant resumed farming on the Land in early November 2014. In the second week of November 2014, his Neighbour approached him and renewed the. The Applicant refused. After threatening him that he would not be lucky and safe next time, his Neighbour left.
11. In January 2015, his Neighbour and four unknown men approached the Applicant for the Land. When he refused, they assaulted him with wooden sticks. He shouted for help, and some villagers came to stop the fight. Before leaving, his Neighbour threatened to kill him next time he saw him. The Applicant was taken to a local clinic for treatment. He did not report the assault to the police, as he believed they would not help him. After discussing with his family, he went to hide in the Bangla Sahib Sikh Temple in New Delhi again for three months and then came to Hong Kong.
12. The Applicant claimed that state protection was not available due to the close connection between His Neighbour and the head of village council. He does not believe internal relocation viable, as he could not live independently in New Delhi.
The finding of the Board
13. The Applicant testified before the Board. The Board found his evidence illogical and cannot be believed.
14. As the Neighbour knew the Applicant’s father is the owner of the three plots of land, the Board found there was no reason why the Neighbour would target the Applicant and not his father.
15. If the Neighbour really wanted to get the Land, the Board found there was no reason why he only assaulted the Applicant when he was farming on the land and did nothing over a lapse of five years when the Applicant was in Cyprus. The Board considered the Neighbour’s conduct inconsistent with a person who really wanted to obtain the Land.
16. In answer to the above observations of the Board, the Applicant explained that his father had prepared the documents for the transfer of the land to him but he had not signed it. The Board rejected the explanation as a bare allegation and a lame excuse as nothing had been done to effect the transfer to him for a period of six years from March 2009 to April 2015.
17. The Board found it strange that on both occasions after the assault, the Applicant went to hide himself in the Bangla Sahib Sikh Temple in New Delhi.
18. The Board rejected the Applicant’s argument that he could not live independently on his own in New Delhi as he was only a farmer because on his own evidence, as he had stayed and lived worked in Cyprus on his own for five years.
19. The Board went further and found that even if accepting all his evidence, the Applicant still failed to make out his case for non-refoulement protection. He had not been seriously injured by his Neighbour on the two occasions in April 2009 and January 2015. He also agreed that his Neighbour could have inflicted more serious injuries on him if his Neighbour had wanted to. Hence, the Board found his Neighbour had no intention to cause him serious bodily harm.
20. It also found that his Neighbour was only a fellow farmer and not a government official. There was also no evidence to suggest that he had any connection with the high officials in the Indian government.
21. On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in India. However, the same COI also suggested that there are objective indications that the Indian government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. The Board therefore considered there is reasonable state protection readily available to the Applicant in India.
22. In addition, the Board found that as an able-bodied person, the Applicant could safely relocate to other parts of India to avoid the perceived risks from his Neighbour which were localised within his home area.
23. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
24. 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[5].
Grounds for judicial review
25. The Applicant did not advance any grounds for judicial review in Form 86. In his supporting affirmation, he reiterated that he could not go back to his country because he had problem there. This is a direct challenge of the Board’s finding of fact which is impermissible save for errors of law, procedural unfairness and irrationality in the Decision.
26. At the hearing, after the legal principles in the above section have been explained to the Applicant, he said he had no complaint about errors of law and left it to the Court to look for errors of law in the Decision on his behalf. He confirmed he had no complaints about procedural unfairness or irrationality in the Decision. In the absence of specific grounds of application or grounds with sufficient particulars, 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.
Overall scrutiny
27. Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear of harm by his Neighbour. The Board had carefully weighed the evidence and assessed his credibility. It found the Applicant incredible and his evidence unreliable. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of his claims, such a finding is fatal. The Board did not stop there. It also assessed his claim on the basis of the case as he asserted. It was also on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks.
28. The Board’s Decision is a mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, it is 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. The Court could detect no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. The Decision was utterly without fault. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
29. For the above reasons, the leave application is refused.
Dated the 4th day of March 2025
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( Seline Sze )
for Registrar, High Court
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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 the Applicant’s 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 04/03/2025
Jagmeet 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 04/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11353/18/4/363/IN2219
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 905/18 (Formerly as RBCZ 12919/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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 23 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 [14(1)]
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