JAGPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1639/2020

[2022] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1639 of 2020

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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This are two applications before the Court: (1) the Applicant’s application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 28 May 2020 (the “Decision”) and the decision of the Director of Immigration in his notice of decision dated 21 November 2018 (the “Notice”); and (2) his application by way of affirmation filed on 16 December 2021 to withdraw that application (the “withdrawal application”).  

2.  The Applicant is a national of India.  He arrived at Hong Kong on 8 November 2014 and was permitted to stay until 22 November 2014.  He overstayed since 23 November 2014.  He was arrested by the police on 18 March 2015.  He then applied for non-refoulement protection by written signification on 20 March 2015.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 21 November 2018, the Director of Immigration rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision. 

3.  On 11 August 2020, he took out the leave application seeking leave to apply for judicial review of the Notice and the Decision.  He did not state his grounds of application in his Notice of Application for Leave to Apply for Judicial Review (Form 86).  In his affirmation filed on the same day, he advanced the following grounds in support of his leave application.

(1)   the decision in the Notice and Decision are not reasonable and unfair;

(2)   the Board did not allow him sufficient time to arrange the relevant evidence;

(3)    the Director failed to give proper weight to the presence of state acquiescence and he was tortured at the behest of state law enforcement agencies and those in the high ups of political circles;

(4)   the Director failed to take “such argument” into account or give it enough weight; the Director failed to consider or give enough weight to Country of Origin Information (“COI”) which support the Applicant’s case that the police in his home country would not be able to protect him; and

(5)   the unfair attitude of the Director; the Director failed to attain the high standard of fairness required by the Wednesbury test.

4.  Then, on 16 December 2021, the Applicant apply by way of affirmation to withdraw his leave application.  The reasons stated in his affirmation are:

“… I would like the Court of First Instance to withdraw my application done under HCAL No. 1639 of 2020. I wish to depart from Hong Kong as soon as possible as my mother is suffering from last stage of cancer. I wish to reach India as soon as possible.”

That is only a statement of his intention to close his case and to return to India, but not a valid ground for withdrawing the leave application in the light of the grounds raised in the leave application.  To ensure that his decision to withdraw was made voluntarily and not as a result of threat, duress or other inappropriate reasons and to ensure that he will be safe if returned to his home country, the Court wrote to him on 5 January 2022 informing him that his application is adjourned to 26 January 2022 for hearing.  The Court also gave him directions to lodge a statement setting out:

(a)   the grounds for withdrawal of his leave application, stating in particular:

(i)    whether his feared harm has been resolved; and

(ii)   whether he still anticipates any real chance that he will be harmed or otherwise ill-treated by his enemies, if refouled;

(b)   his submission in support of the withdrawal application; and

(c)   whether he wishes to have his application heard at an oral hearing.

He was also informed that the withdrawal application as well as his leave application, if the withdrawal application is refused, will be determined on paper, if he does not attend the hearing regardless whether the above directions have been complied with.  A separate formal notice of hearing was also sent to him by post on the same day.  The letter and notice have not been returned through the post.

5.  The Applicant did not respond and did not attend the hearing.  The letter containing the directions and the notice of hearing were sent to him within 19 days of his filing of the withdrawal application and to the address stated therein.  There is nothing to suggest the Applicant has changed his address or has not received the correspondence.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

The applicable legal principles          

6.  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].

The Applicant’s case

7.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, his case is that if returned to his home country, he would be harmed or even killed by members of a rival political party.

8.  The Applicant is a national of India, now aged 29. He belongs to the ethnic group of Jatt Sikh.  He is a supporter of the Congress Party since he was about eighteen.  He was well known in his village.  He organised campaigns and helped to recruit supporters and voters for the Congress Party.  He does not like or support the Akalidal Party.  Members and supporters of Akalidal Party did not like him either.

9.  He was approached by five supporters of Akalidal Party towards the end of 2013 when he was on his way to his family farmland. They tried to persuade him to leave the Congress Party to join Akalidal Party. He refused.  They told him “No hurry.  You would better re-think.” The Applicant replied that he would.

10.  A week later in 2014, he was stopped by the same group of five men.  They were carrying long wooden sticks.  They asked him if he had made up is mind.  He replied that he would not leave the Congress Party.  The men then attacked him with the sticks.  The Applicant managed to speed off on his motorcycle and escape unharmed.

11.  One day in February 2014, the Applicant and six supporters of the Congress Party were holding an election campaign in a street.  The same group of five together with five other Akalidal supporters, including Buta Singh approached him.  Buta Singh asked if he had decided to join the Akalidal Party.  He refused.  Then Buta Singh told his group to attack the Applicant’s group.  The fight lasted for five to ten minutes until some passers-by stopped the fight.  When Buta Singh and his group were leaving, Buta Singh yelled, “You won’t be that lucky next time and we won’t spare you and next time when we see you, we will kill you.”

12.  The Applicant suffered bruises and swellings all over his body.  He received treatment from a village doctor and recovered in a week.

13.  The Applicant and his group went to the police station to make a report.  The police officers refused to register their complaint.

14.  The Applicant went to hide in the home of his friend, Happy Singh in the Malout City, about 6 kilometres away from the village.  He stayed there for several months.  He did not go out in the daytime. 

15.  In June 2014, the Applicant went back to his village to see his mother who fell sick.  He stayed there for two days.  When he was walking back to Malout City, Buta Singh and ten others appeared.  They were armed with wooden sticks and baseball bats.  They attacked him without saying anything.  They stopped when passers-by gathered into a crowd.  As they were leaving, Buta Singh said, “Don’t you think you will be that lucky next time; when we see you again, you’ll be killed.”

16.  The passers-by took the Applicant to hospital.  He suffered extreme pains and sustained extensive cuts, bruises, swelling and bleeding all over his body.  He was given injections, bandages, painkillers and ointments and was discharged after one day.  It took him two months to recover. 

17.  Happy Singh arranged for him to stay with some other friends and arranged passage for him to come to Hong Kong on 8 November 2014.

The finding of the Board

18.  The Applicant gave evidence before the Board.  The Board found that he and his family members had not suffered any death, harm, or threats of death or harm or severe pain or suffering from Buta Singh and supporters of Akalidal Party.  The Applicant had not suffered any torture.  Even if he had, the torture inflicted was not directly linked to the interests or policies of India or its organ or inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Board concluded there is no real risk that he will experience torture, if refouled to India.

19.  Likewise, the Board found that the Applicant and his family members had not suffered cruelty, inhuman, degrading treatment or punishment (“CIDTP”) from Buta Singh and supporters of Akalidal Party.  In any event state protection was available.  The Board concluded there is no real risk that he will suffer torture or CIDTP, if refouled.

20.  Likewise, the Board found that there is no real risk that the Applicant will suffer persecution if he returns to India; that reasonable state protection is available; and that it would not be unduly harsh for him to relocate himself to other areas in India to avoid the risk.

21.  Hence, the Board concluded that the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed his appeal against the Notice.

Discussion

22.  Despite the Court’s directions, the Applicant declined to state his grounds for withdrawal or confirm that his alleged fear and risks of harm had been resolved or that he does not anticipate any real chance that he will be harmed or otherwise ill-treated by his enemies, if returned to India. The Court is skeptical of the reason for his withdrawal application. It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality or even procedural unfairness.  It would therefore be in the Applicant’s best interest to have his leave application determined to ensure that he would be allowed to continue his stay in Hong Kong if it is unsafe to return to India rather than to allow his withdrawal application and thereby depriving him the benefit of a screening of his entitlement to challenge the Decision by way of judicial review.Hence, the Court refused the Applicant’s withdrawal application and proceeded with determining his leave application.

23.  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 and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[6]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.  

24.  The Applicant’s first ground is an attack on the outcome of the Decision rather than procedural unfairness or irrationality.  It is an attack on the Board’s fact finding of fact.

25.  His second ground is not particularised.  But it is amply clear that the Notice was issued on 21 November 2018, but it was not until 28 August 2019 that the first oral hearing before the Board was held.  The second hearing was held on 5 September 2019.  He had in between the receipt of the Notice and the first hearing 21 months to prepare for his appeal.  It lies ill in his mouth to argue that he did not have sufficient time to arrange the relevant evidence.  Actually, all evidence should have been presented before the Director at the screening interview on 13 November 2018.  Before the interview, he had stayed in Hong Kong for almost four years.  If he was serious in preparing his non-refoulement claim, he should have started preparing his evidence since November 2014.

26.  His third ground about the Board failing to give proper weight to the presence of state acquiescence is also an attack on the finding of fact by the Board. 

27.  His fourth ground is an attack on the Board’s finding of fact about availability of state protection and internal relocation.   The Board had considered the conflicting information in the COI.  The weight to be assigned to the information is a matter solely for the Board.

28.  His fifth ground is un-particularised.  

29.  As the Applicant has not advanced any substantial grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  It found that the Applicant had failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for 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, unreasonableness and irrationality.  The Court could detect no 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.  Accordingly, the Applicant’s application for leave to apply for judicial review was also refused.

Conclusion

30.  For the above reasons, the Applicant’s withdrawal application and leave application are 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

[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] [2018] HKCA 524 at para 14(1)

[6][6] [2018] HKCA 549