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

HCAL 107/2021 & HCAL 273/2023

(Heard together)

[2023] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST Nos. 107 of 2021 & 273 of 2023

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;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) on HCAL 273/2023 be granted;

2.  Leave to apply for Judicial Review on HCAL 107/2021 dismissed for want of subject matter; and

3.  Leave to apply for Judicial Review refused for HCAL 273/2023.

Observations for the Applicant:

Introduction

1.  The Applicant has filed two applications by Form 86 on 22 February 2023 and 1 February 2021 for leave to apply for judicial review (respectively, the “2023 leave application” and “2021 leave application).

2.  In the 2023 leave application, he named the Director of Immigration (the “Director”) as the intended respondent and the Director’s decision in the Notice of Decision dated 10 January 2023 as the decision in respect of which relief is sought and he enclosed a copy of that decision in his supporting affirmation. But that decision is in fact the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) refusing his appeal against the Director’s Notice of Decision dated 2 June 2021 refusing his application for non-refoulement protection (the “Notice”). Enquiries with the Immigration Department also revealed that the Director had not made any decision dated 10 January 2023 regarding the Applicant. Thus, it is obvious that the intention of the Applicant is to seek judicial review of the Board’s Decision refusing his appeal against the Director’s Notice. Leave is therefore granted to amend the 2023 leave application to give effect to his intention.

3.  In the 2021 leave application, he named the Board and the Director as the intended respondents and a decision dated 5 January 2021 as the decision in respect of which relief is sought. The Applicant has not identified the maker of that decision or produced a copy of that decision in his supporting affirmation. Enquiries with the Board and the Director revealed that no decisions in respect of the Applicant other than the ones mentioned in Paragraph 2 above had been made by them. The decision allegedly dated 5 January 2021 is fictitious. Accordingly, the 2021 leave application is dismissed for want of subject matter.

4.  The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A).

The Applicant’s case

5.  The Applicant is an Indian national, now aged 45. He was born in Village Kishanpura, Haryana, Chandigarh, India. He is married and his children are currently living in India. He completed class 10 in secondary school in India and has 17 years of agricultural experience.

6.  The Applicant was arrested by the police for being an illegal immigrant on 2 July 2015. He claimed he had entered Hong Kong illegally on the same day. On 5 July 2015, he filed a claim for non-refoulement protection. In due course, his was assessed on all four applicable grounds under the Unified Screening Mechanism (“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.

7.  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 from the Duty Lawyer Service. In gist, the Applicant claims he will be harmed or killed by his neighbour, Krishan Ajmer and his associates because of a land dispute.

8.  The Applicant alleged that ever since his father inherited a portion of a large piece of land from his grandfather, Krishan’s family wanted to swap their own portion of the land with the Applicant’s father’s portion as Krishan believed the Applicant’s father’s portion was more fertile. In 2013/2014, a meeting for that purpose was held amongst the Applicant, Krishan and their respective fathers. However, no agreement was reached. The Applicant claimed that Krishan threatened to kill him and his father if they did not comply with his demand.

9.  A few days after the meeting, the Applicant was attacked by four to seven men while he was walking home by himself. He was beaten with wooden sticks and sickles. He fainted and was taken to a hospital. Later, the police came to take a statement from him. He was unable tell the police the identities of the attackers. Whilst Krishan was not among the attackers, the Applicant strongly believed Krishan ordered the attack because of their land dispute.

10.  To avoid further conflict with Krishan, the Applicant stayed with his paternal aunt after he was discharged from the hospital. Out of fear, he came to Hong Kong in June 2015. As to the current situation, the Applicant claimed that the land dispute with Krishan is still ongoing.

The finding of the Board

11.  An oral hearing was scheduled for the hearing of the appeal but the Applicant did not turn up. A notice of intention to determine the appeal in his absence together with a request for an explanation for his absence were served on the Applicant. As he did not respond, the Board thus determined his appeal.

12.  Despite the Board did not have the opportunity to test the veracity of the Applicant’s evidence, it assessed his claim on the basis of the case as he asserted. However, the Board found for the following reasons that there was no likelihood that the risk of harm alleged by the Applicant would materialise, if he is refouled to India. Firstly, the Applicant only suffered one attack in 2014, which he assumed was orchestrated by Krishan because of the land dispute. He was not further attacked prior to his departure for Hong Kong in June 2015. Had the attackers wanted to cause him further harm, they could have done so, but they chose not to. Secondly, it was the Applicant’s own evidence during the screening interview that had he informed the police about the land dispute when he was hospitalised, the police would have assisted him; but it was his own volition not to do so. Hence, the Board was satisfied that adequate state protection is available. Lastly, the Applicant was not attacked when he stayed with his paternal aunt in Saharanpur. There was no evidence to suggest that the Applicant would be at risk of future harm if he relocates to another area in India. The harm caused by Krishan was entirely localised. On the basis of authoritative and credible country of origin information, the Board was satisfied that given his education and work experience it would not be unreasonable for the Applicant to so relocate himself to avoid the risk of harm.

13.  Applying the law applicable to non-refoulement protection to the facts found, the Board did not consider the Applicant would be at risk of any of the proscribed harm, if refouled to India. It therefore dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

14.  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 feasibility 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

15.  The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he only exhibited a copy of the Decision. In the absence of any 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.

Conclusion

16.  The Board assessed the Applicant’s claim on the basis of the case as he asserted. Understandably, the Applicant is seeking to challenge the Board’s finding of fact and of law that he would not face any real harm or risk of harm if returned to India. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

17.  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. The Board assessed the Applicant’s claim on the basis of the case as he asserted. The Applicant could not have any complaint on these findings of fact by the Board. It was on the basis of these findings of facts that the Board found the feared risk of harm unlikely to materialize, that state protection is available and that internal relocation is feasible. Hence, the Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These findings of facts are exclusively within the province of the Board to make, 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 does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

18.  For the above reasons, 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