KAILA KULDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 3 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 23 February 2021 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision, refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is an Indian national, now aged 38.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed, if returned to India, by his uncle and cousins because of a land dispute. 

3.  The Applicant’s case is that his grandfather had 200 acres of land.  After his death, the land was inherited by the Applicant’s grandmother, his father and his uncle.  After the grandmother’s death, his father inherited her land.  Then, his uncle disputed with his father about the land.  In around 2010, the Applicant’s father transferred the title of his land to the Applicant.  Since then, his uncle began to target him.  Between 2010 and 2015, his uncle and cousins attacked the Applicant twice and kept threatening to kill him, if he refused to transfer the title of the land to them.  The Applicant made a report to the police, but no action was taken.  He believed that was because of his uncle’s connection with the ruling party in India.

4.  One morning in late 2014, his uncle and cousins came to the field where the Applicant and his parents were working.  His uncle grabbed and restrained his parents while his cousins assaulted the Applicant with wooden sticks.  The Applicant suffered bruises and dizziness.  The Applicant’s father made a report to the police.  The police arrested the Applicant’s cousins, but not his uncle who was not at home at the time.  However, his cousins were released three to four days later.  The Applicant believed his uncle had bribed the police. 

5.  In early 2015, his uncle went to the Applicant’s home and threatened to harm him because his uncle blamed his family for the arrest of his cousins.  Worried about his safety, the Applicant went to Kashmir to stay with his friends for two to three months.  He returned home for a month.  Then, he left India and arrived at Hong Kong on 13 October 2015. 

The Board’s finding

6.  The Board seemingly accepted the Applicant’s case and assessed his claim on the basis of the facts as he asserted.  It found the Applicant only suffered minor injuries during the various attacks which did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.  These findings led the Board to the conclusion that his uncle had no intention to seriously harm or kill him and that the threats were aimed to pressurise him to transfer the title of the land to his uncle.  It accepted on the basis of country of origin information (“COI”) that corruption is not uncommon in the police force as well as other government officials, but there have been on going reforms in India to improve efficiency in the police and to combat corruption.  On the facts, the police had carried out investigation, arrested the cousins and held them in custody for three or four days.  On balance, it found the Applicant had failed to establish there were substantial grounds for believing that he would be liable to torture if he returned to India.  It found that the land dispute is a private dispute which had nothing to do with the Applicant’s race, religion, political belief or nationality.  It rejected the Applicant’s argument that internal relocation was not a viable option to avoid the risk of harm from his uncle and cousins.  In gist, despite having accepted the case as he asserted, the Board found the Applicant had failed to establish sufficient factual basis to support his claim for protection under any of the applicable grounds under the United Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

7.  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[2].

Grounds for judicial review

8.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  However, in his supporting affirmation, he had advanced the following four grounds of application:

(1)  the Director reached the Decision wrongly and the Decision was unreasonable and unfair;

(2)  the Director failed to appreciate the importance of state acquiescence;

(3)  the Director failed to take such argument into account and failed give enough weight to the COI which supported his claim;

(4)  the Director’s attitude was so unfair as to render the Decision void.

9.  The Applicant confirmed that the grounds were prepared by him and he understood them.  The grounds were all directed at the Director.  As the Director’s decision in his Notice had been superseded by the Board’s Decision and is not reviewable, the Court assumed for his benefit that all the grounds are directed at the Board as well.  However, the grounds are all un-particularised.  When asked he was unable to provide particulars and actually confirmed he had no complaint about irrationality and unfair attitude.  He confirmed that the Indian government had no part to play in the ill-treatment he received.  Hence, there is no substance in any of the grounds advanced.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

10.  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 applicable to non-refoulement protection 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 analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  Except for its finding on availability of adequate state protection, the Board assessed his claim on the basis of the factual case as he asserted.  Then, applying the law applicable to 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 claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

11.  For the above reasons, the Applicant’s leave application 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

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