Sohi Manpreet Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 768/2018 on BabelCite. This High Court CFI judgment was delivered on 7 March 2019.
1. The Applicant is a national of India. He is now aged 31 (DOB: 24 November 1987).
Cites 4 cases
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HCAL768/2018 [2019] HKCFI 543 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 768 of 2018 BETWEEN
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 Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of India. He is now aged 31 (DOB: 24 November 1987). 2.The Applicant claimed he would be harmed or killed by his three uncles Mukhitar Singh, Balwinder Singh and Harjinder Singh due to a land dispute. Mukhitar Singh was the village head and an elected member of the Shiromani Akali Dal (“SAD”). He had great influence on the local authority and police. The other two uncles were also supporters of SAD. 3.The Applicant said his father and three uncles had inherited some land from the Applicant's grandfather. The Applicant's father was a soldier so he asked his brothers to manage his share of the land. 4.The Applicant's father later retired from the army but he continued to let his brothers manage the land. 5.In 2009, the Applicant's father died in suspicious circumstance. Since then, the uncles stopped paying the dues from the land to the Applicant's family. 6.A few months later, the Applicant and his mother asked the uncles to return the land to them. The three uncles refused. 7.In mid-2010, the Applicant and his mother were assaulted by the three uncles due to the land dispute. They took the matter to the village council. Since Mukhitar Singh was the village head, the Applicant and his mother could not get proper redress. 8.The Applicant insisted on farming on the land. He was assaulted by his three uncles and a cousin in June 2010. The Applicant was injured. Some villagers came to his rescue. 9.The Applicant made a report to the police but the police were reluctant to investigate since Mukhitar Singh was the village head. 10.The Applicant and his mother lived elsewhere for some months. In mid-2011, the Applicant returned to farm on the land with a fellow villager Hakam Singh. They were assaulted by the three uncles and the cousin. They complained to the police. However, the Applicant's uncles were ahead of him. They had made false accusation against him and Hakam Singh. The Applicant was threatened by the police that he would be arrested and beaten up. The police also threatened the Applicant to give up the land to his uncles. 11.In late 2011, the Applicant tried to sell the land. His uncles took the dispute to court. They forged documents for their purpose. The case dragged on. The Applicant said he would get calls from the police and his uncles, threatening to file false accusation against him or even kill him. 12.In 2015, the Applicant obtained proof from the India Army to verify he was the legitimate son of his late father for inheritance. The Applicant won the case in court but his uncles refused to give him back the land. They continued to threaten him. They even brought the police to the Applicant's home to take away the land documents and court papers. 13.The Applicant decided to leave India for safety. He entered Hong Kong as visitor on 6 April 2015. He was allowed to stay till 13 April 2015 but he left on 12 April 2015. The Applicant returned on the same day. He began overstaying from 13 April 2015. He was arrested almost five months later on 9 September 2015. On 12 September 2015, he raised a non-refoulement claim. The Applicant said he had not applied for protection earlier because he was not familiar with the procedures. 14.The Applicant said he would not get state protection from the India authorities due to the influence of Mukhitar Singh and SAD. For the same reason, internal relocation was not viable. The Applicant also said he did not have sufficient means to live in cities like Delhi and Mumbai. 15.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 16.On 3 May 2018, the Applicant applied for leave for judicial review. Timeline 17.Things happened in this order: –
Respondents 18.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 19.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 20.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only. The Director's decision 21.The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. 22.On 21 July 2017, the Director refused the Applicant's claim with respect to all the four applicable grounds. The Board's decision 23.The Applicant appealed to the Board. The Adjudicator interviewed him on 14 December 2017. 24.The Adjudicator found there were inconsistent features in the Applicant's allegations. For example, the Applicant said for the first time that his uncles had been harassing him and his mother incessantly for three years since 2010. Also, the Applicant said in his written statements that the second assault occurred in 2010 and only he was on the land. However, he told the Adjudicator that assault happened in 2012 and his mother was also present then. The Applicant also gave different details of the incidents involving Hakam Singh and his uncles’ taking away the land documents and court papers from him. The Adjudicator noted the Applicant had not mentioned the snatching of documents in his non-refoulement claim form (“NCF”) but only raised it in the Director’s interview. The Applicant was also inconsistent on whether his uncles continued to harass his mother or not. 25.The Adjudicator did not accept the Applicant's allegation of the land dispute or the uncles’ harassment of him and his mother. She was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. 26.On 20 April 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. Grounds of judicial review 27.In his affirmation, the Applicant complained there was a lack of interpretation service after the Director's decision. 28.The Applicant disagreed to the Adjudicator’s decision. He said state protection was no available to him in India. Court hearing 29.The hearing took place on 7 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court. 30.The Applicant said a friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He said he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. He complained the Director and the Adjudicator considered his case in a speedy manner and did not pay sufficient attention to his claim. Discussion 31.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 32.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
33.The Applicant complained there was a lack of interpretation service after the Director's decision. 34.In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by an interpreter in the screening process before the Adjudicator. The Applicant had certainly exaggerated his language problem. 35.The Applicant disagreed to the Adjudicator’s decision. He said state protection was not available to him in India. 36.The Adjudicator disbelieved the Applicant's claim. Therefore, state protection was not a real issue. The Adjudicator did not and need not consider state protection since there was no risk facing the Applicant. 37.The Applicant complained the Adjudicator considered his case in a speedy manner and did not pay sufficient attention to his claim. The Applicant failed to give specifics. There was no evidence the Adjudicator had hurried herself or the Applicant in the screening process. 38.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 39.The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review. Dated the 7th day of March 2019
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] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). |
Cases cited in this judgment