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HCAL 1266/2020
[2024] HKCFI 1139
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1266 of 2020
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Paramjit 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:
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 23 June 2020 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 13 May 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 December 2018 (the “Notice”).
2. The Applicant is an Indian national. He entered Hong Kong illegally on 30 January 2016 and surrendered to the authorities on 1 February 2016. On 31 May 2016, he raised a non-refoulement claim. 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 claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
3. This leave application had been withdrawn on 25 September 2023 upon the Applicant’s application. On 14 February 2024, he applied to re-open his leave application on the ground that he had been misled to make the withdrawal application as result of a fraud practised on him. His leave application was therefore restored. However, at the hearing, his stance remained equivocal and indecisive. He repeated that he wanted to withdraw his leave application and return to India, but reiterated that his life would be in danger if he returned because “someone” had visited his home in India, suggesting that someone will harm him (see Paragraphs 18 and 19 below). He asked for time to consider. He was explained that the Court will only allow him to withdraw if satisfied that he does so on his own free will and with full understanding of the consequences of the withdrawal, including the finality of the Decision. His case was then stood down for an hour and half for him to consider. When the hearing resumed, he applied for a longer adjournment. His application was refused. He was told that if he could not make up his mind to withdraw then, the Court would hear his leave application and he may withdraw anytime before the Court hangs down its decision in about a week’s time. The hearing of his leave application continued.
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 (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he would be harmed by Apar Singh (“Singh”), a Municipal Councillor of Jagraon, upon his return to India because of Singh’s enmity against him.
5. The Applicant, now aged 41, was born in Dashmesh Nagar, Jagraon (Ludhiana), Punjab, India. He received nine years of education and has over ten years of working experience as a carpenter.
6. The Applicant and his family were supporters of the Indian National Congress (“INC”). In around late 2008, the Applicant became the president of the youth union of INC in Jagraon. But he also helped Singh who belonged to the Shiromani Akali Dal Party (“SAD”) because he wanted to help the local community. In around 2009, INC wished to open a fitness club in Jagraon funded by the government, but Singh as the Municipal Councillor objected to the proposal. The Applicant fell into disagreement with Singh and he confronted Singh several times about the matter. Eventually, the fitness club was built, but the Applicant fell out with Singh. Since then, Singh harassed the Applicant and threatened to kill him. Singh also harassed his father and framed his younger brother for fighting and stealing, though in the end the court dismissed the charge against his brother.
7. The Applicant went to work in Dubai in 2009 to avoid Singh. His father passed away while he was in Dubai. His family told him that his father started drinking after he was harassed by Singh and died not long afterwards. The Applicant returned to India in February 2010 and then went back to work in Dubai.
8. The Applicant finally returned to India in 2011. He resumed his trade as a carpenter and stayed out of politics. He had no problem with Singh until 2014 or 2015 when a neighbour told him that Singh had murdered his father. The Applicant believed Singh had sent men to force his father to drink alcohol before beating him up and throwing him into a river. He went to the hospital and the police station to gather evidence about his father’s death. He also made a police report about Singh’s role in his father’s death.
9. That same evening, the Applicant was assaulted by five unknown people for about one and half minutes until they were interrupted by the headlights of a passing by vehicle. The assailants asked him why he was taking enmity with the political people. He believed the assailants were sent by Singh to kill him. He suffered injuries and bruises all over his body. He had wounds on his right hand and chin. It took him one month to fully recover. After the attack, he and his family were harassed by different people. The Applicant believed Singh was behind the harassment.
10. The Applicant and his family fled from their home. After staying at different places, he decided to flee to Hong Kong in early 2016. He does not believe internal relocation was viable because Singh could locate him through his political connection. He claims that the authorities would not help him.
The finding of the Board
11. The Board accepted the account of events as asserted by the Applicant, except his assertion about his father’s murder and the assault on the Applicant, which is the centrepiece of his claim for non-refoulement protection. The Board considered the alleged murder and assault are inconsistent with the rest of his evidence. Despite the harassment following the building of the fitness club, Singh had left the Applicant alone for three years without trouble until the Applicant started to investigate his father’s murder.
12. The Applicant claimed that the murder of his father was public knowledge in the area where he lived and Singh targeted him because he was trying to uncover Singh’s involvement in the murder. But on the Applicant’s own evidence, though his family had made vague allegations of harassment on the father which led to his father developing a drinking habit, for the five years after his father’s death, the Applicant’s family had never mentioned to him about the murder, not even the possibility of murder. Likewise, for the three years after the Applicant’s return from Dubai, his neighbour never told him about the murder. The absence of proper and credible explanation to such anomaly[5] casts doubts on the credibility of the Applicant’s evidence about what he was told by his neighbour. That led the Board doubt the whole theory about his father’s murdered. The Board also found that theory is unsupported by any credible evidence. If there was no murder, there would not have been such an attack on the Applicant as he described[6].
13. Even if his father were murdered, by the time the Applicant started his investigation, five years had lapsed since his father’s death. On any objective view the Board was not persuaded that the investigation could lead to anything prejudicial against Singh. Given Singh’s profile in the neighbourhood, Singh would not consider the Applicant a person to be reckoned with if he did not make a nuisance of himself to him[7]. The Board found it inherently improbable that Singh would have found it necessary to harass the Applicant.
14. For the above reasons, the Board rejected the Applicant’s evidence that he had been told by a neighbour about his father’s murder and that he was assaulted because he started to investigate his father’s murder. Having rejected that part of his evidence, the Board held that “the Applicant ran away from a fear created by himself and from a person whom he made a fear”[8]. It found that the Applicant did not genuinely and had no reasonable ground to believe he would face substantial risk to his life, if returned to India.
15. Having rejected the centrepiece of the Applicant’s case and made the above finding, the Board found on the basis of the remaining evidence of the Applicant’s case that he had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Decision.
Legal principles applicable to judicial review
16. 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[9].
Grounds for judicial review
17. The Applicant did not advance any grounds for judicial review in the Form 86 or his supporting affirmation. He was invited by the Court via its letter dated 26 February 2024 to advise the Court of his first language and to file submissions. He responded by reiterating that his life would be in danger if returned to India.
18. At the hearing, after the legal principles in the preceding section was explained to him, he confirmed that he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. In the course of exploring his grounds of application for judicial review with him, he asserted that he wished to return to India but it would be unsafe for him to return. That is a blatant challenge of the Board’s finding of fact that it would be safe for him to return, which is impermissible save for errors of law, procedural unfairness or irrationality in the Decision.
19. He complained that his claim had not been properly considered by the Director or the Board. He submitted that while the Director quoted examples that wrongdoers will be punished (which the Court understands him to mean country of origin information (“COI”) supporting the availability of state protection), he said he would not be heard or be allowed to present his case against Singh in India because Singh was powerful. He asked this Court to reconsider his claim and allow him more time to stay in Hong Kong for his danger to be resolved. He repeated his story about “someone coming to his home in India recently” suggesting that his life will be at risk arising from some new events. Nevertheless, the new event is premised on a story which had been dismissed by the Board as not proven and a fear of his own creation. In essence and in substance, he is seeking to challenge the finding of fact by the Board that his fears and risk of harm are not genuine. This is impermissible save for errors of law, procedural unfairness or irrationality in the Decision.
20. 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. 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 seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
Discussion
21. 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 four 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.
22. The Board rejected the centrepiece of the Applicant case, ie his father’s murder and his assault by Singh, as incredible. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four 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 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 did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, the application for leave to apply for judicial review is refused.
Dated 24th day of April 2024.
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(Allen LEE)
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 24/4/2024
Paramjit 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 24/4/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15080/18/12/437/IN2987
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4554/18 (Formerly as RBCZ 12130/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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 33 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] Paragraph 61 of the Decision
[6] Paragraph 68 of the Decision
[7] Paragraph 67 of the Decision
[8] Paragraphs 69, 70 and 74 of the Decision
[9] [2018] HKCA 524 at [14(1)]
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