RAJ AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2030/2018

[2021] HKCFI 958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2030 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;

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  The Applicants are Indian nationals.  The 1^st Applicant is the mother of the 2^nd and 3^rd Applicants.  She arrived in Hong Kong on 7 April 2015 and departed on 21 April 2015.  Then she returned to Hong Kong with the 2^nd and 3^rd Applicants on 6 August 2015.  They surrendered to the Immigration Department on 27 August 2015 and were released on recognizance.

2.  The Applicants first made non-refoulement claims by written representation on 15 March 2016.  On 27 June 2016, they made an application to the Director for non-refoulement protection under the Unified Screening Mechanism (“USM”).  They were assessed on all applicable grounds under the USM, namely:

(a)  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 (“Torture Risk”);

(b)  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”) (“BOR 3 Risk”);

(c)  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 (“Persecution Risk”); and 

(d)  risk of a violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 of ICCPR (“BOR 2 Risk”).

3.  By a Notice of Decision dated 16 November 2016, the Director refused their application for non-refoulement protection.  They appealed to the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”).  Their appeal was dismissed by the Board on 13 September 2018 (the “Decision”).  On 26 September 2018, they applied for judicial review of the Decision of the Board. 

The Applicants’ case

4.  The 1^st Applicant was born in Chahapur, Amritsar, Punjab.  She has two brothers and one sister. She married her husband, Jagdish, in 2001 and moved to his parent’s home village in Village Wanjah Wala, Ajnala, Amritsar.  She gave birth to three sons, but one of them died.  She and her sons are Christians.

5.  The 1^st Applicant’s husband possessed the land on which their family home was built.  It was adjacent to the land owned by Lakha, the “village sar panch” or village head. Lakha is a member of Akali Dal Party and has a good relationship with Bonny Amor Pal Singh who is the leader of the Shiromani Akali Dal Party in Ajanala.  He has connection with gangsters and influential people in the village.  He has “always been coveting” her husband’s land.

6.  Since her marriage, the 1^st Applicant witnessed Lakha and his associates attacked her husband on at least 10 occasions.  Lakha also conspired with the police in Ajanala Police Station to arrest her husband and frame him on many false charges.  Her husband was detained for a couple of hours of up to three to four days.  Her parents-in-law was able to secure his release by seeking help from respected elders in the village.  This situation occurred once a month.  While he was in detention, her husband was assaulted and tortured by the police.  He was hospitalised twice in a private hospital.

7.  Eventually, due to the continuous threats from Lakha, her husband left Wanjah Wala and went to New Delhi to live with some friends in 2013.  He used to call his brother from time to time to inform his brother his whereabouts and through his brother to inform his family that he was safe.  But since the end of 2014, nothing was heard from her husband.  The 1^st Applicant believed her husband’s disappearance was linked to Lakha as her husband was a “very peaceful” person and had no conflict with anyone except Lakha.  Her brother reported her husband’s disappearance to Ajanala Police Station on her behalf, but was told that the husband could not be found.  The 1^st Applicant became very fearful for her and her sons’ safety.

8.  Fearing for their safety, the 1^st Applicant and her sons went to live with her parents in Chahapur which is about 20 kilometres from Wanjah Wala.  Her parents-in-law also abandoned the land and went to live elsewhere with their daughters. 

9.  According to the 1^st Applicant, it is common in their culture that fathers would pass their possession or property to their sons.  Hence, her sons will become the legal holders of the land should anything happen to her husband.  Hence, she believes that Lakha would not spare the 2^nd and 3^rd Applicants.  For that reason, the Applicants came to seek protection in Hong Kong.

10.  The 1^st Applicant maintained regular contact with her father.  Her father warned her not to return to India because Lakha may come to look for her and her sons.  She believes that they could not relocate themselves in India because they would be located by Lakha under the network of Akali Dal Party and the police.  She does not believe the police will offer her protection because of Lakha had influence over the police and the ruling party.

11.  At the hearing before the Board, the Applicants informed the Board that Lakha and his men had now occupied her husband’s house and land and had been to her parents’ home asking about her whereabouts with documents for transfer of the land for her to sign.

The finding of the Board

12.  The Applicants were legally represented by the Duty Lawyer Service.  In their grounds of appeal, they alleged that the Director erred in failing to consider that her husband had disappeared and had been seriously injured on at least two occasions; in failing to appreciate that the Applicants will be unable to obtain police protection in India; and failed to consider the physical and mental suffering which would be inflicted on the Applicants upon their return to India.  It was submitted on their behalf that internal relocation was not viable for the 1^st Applicant who is an uneducated housewife and it would be unsafe and expensive for them to live elsewhere.

13.  The Applicants’ legal representative submitted that the husband’s disappearance was very frightening and the Applicants believed they would be “troubled” by Lakha if they returned to India and the police was unhelpful.  Their legal representative reiterated that Lakha and his men wanted the 1^st Applicant to transfer the land to Lakha; that the Applicants are at risk of attack, torture, kidnap and death and were vulnerable for being Christian minorities.

14.  The Applicants’ legal representative reminded the Board of the Country of Origin Information (“COI”) relating to state protection and police corruption in India and submitted that internal relocation was not a viable option for the Applicants.

15.  The Board identified many inconsistencies in the 1^st Applicant’s evidence and formed an unfavourable view of her credibility.  The Board doubted her evidence that her husband had been kidnapped in connection with Lakha’s coveting his land.  The Board did not believe she had ever suffered psychological trauma in India and doubted the true purpose of her coming to Hong Kong.  Having failed to prove her factual case on which to launch her Torture Claim; BOR 2 Claim; BOR 3 Claim and Persecution Claim, the Board dismissed her appeal.

Disposition

16.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office.  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 scrutinise 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 [2018] HKCA 524 at [14(1)].

17.  The Applicants have prepared a five-page submission setting out their grounds for leave to apply for judicial review.  In essence, they complain that many things have been ignored by the Board, such as police corruption and abuse of power.   They said that police are subject to corruption and political influence. They claimed that torture and deaths in police custody are common because police have no regard for the law.  There is no use to complain to the authorities.  By making a complaint, they would be making their identities known and would become target of retaliation. They said that it is very difficult to get justice in India and life is not safe.  

18.  All these arguments and evidence have been considered and rejected by the Board in its fact finding.  The Board found the 1^st Applicant’s account of her husband having been kidnapped by Lakha inherently incredible and gave full reasons for its conclusion after setting out the material inconsistencies in the 1^st Applicant’s evidence.  The Board identified other inconsistencies in her account which undermined her credibility leading the Board to disbelieve her.  Having rejected the 1^st Applicant’s evidence, on which the 2^nd and 3^rd Applicants also relied, there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  In addition, the Board considered the COI in support of the Applicants’ allegations of police corruption and COI pointing to availability of police protection and the Indian government’s effort to improve police efficiency and combating corruption.  There are credible COI showing law enforcement actions having been taken against senior government and police officials.  Having regard to the COI, the Board came to the further finding that even if the risks were real, internal relocation is an available option.  These are finding of fact which is not the function of this court to intervene.

19.  The 2^nd and 3^rd Applicants were of tender years at the time when they first made their non-refoulement claim in 2016.  They were then aged 11 and 10 respectively.   The impact of fear and risk to a child may be very much different from that to an adult.  It might appear that the Board has not considered the 2^nd and 3^rd Applicants’ applications separately from their mother’s.  However, in view of the Board’s finding that there were no genuine fear or risks, it is unnecessary for the Board to consider the impact of such fear and risk on them.  They have no fear or risk which call for protection.

20.  The court has considered the Board’s Decision, the papers, and the submissions with rigorous examination and anxious scrutiny.  The court is satisfied that the Board had correctly set out the law and the key legal principles relating to the four applicable grounds under the USM.  The Board took great care in analyzing the evidence.  The court is of the opinion that the Decision of the Board was utterly without fault.  There were no errors of law or irrationality in its Decision or procedural unfairness. Indeed, the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review 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