Harnek Singh and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2824/2018

[2021] HKCFI 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2824 of 2018

BETWEEN

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;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.The Applicants are Indian nationals.  They entered Hong Kong as visitors on 4 April 2015 and were permitted to stay until 18 April 2015.  They over-stayed thereafter and then surrendered to the Immigration Department on 21 April 2015.  On 2 June 2015, they applied for a non-refoulement protection but provided no reasons for the basis of their claim.  They re-applied on 22 July 2015 claiming that they will be harmed or killed as a result of a land dispute if returned to India.  

2.In due course, their non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. By a Notice of Decision dated 27 June 2016 (the “2016 Notice”), the Director of Immigration (the “Director”) rejected their claims.  On 7 July 2016, they lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the 2016 Notice.

3.In the meantime, a further applicable ground, namely BOR 2 Risk[4]  ground, became available under the USM.  Having considered their claim under this ground, the Director issued a Notice of Further Decision dated 23 June 2017 rejecting their claims based on BOR 2 Risk ground (the “2017 Notice”).

4.On 23 October 2017, the Board conducted an oral hearing of the Applicants’ appeals against both the 2016 Notice and 2017 Notice.  On 20 November 2018, the Board dismissed their appeals (the “Decision”).  On 10 December 2018, the Applicants applied for leave to apply for judicial review against the Decision of the Board.

5.The Applicants did not request an oral hearing. They even refused to accept the court’s letter inviting them to file submissions if they so prefer.  Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing.

The Applicants’ case

6.The following account of the Applicants’ case is mainly based on the information in their non-refoulement claim form, record of screening interview, statement, notice of appeal and submissions, which were accepted by the Board.  Their case is summarised in paragraphs 28 to 38 of the Decision.  The evidence is summarised in paragraphs 39 to 84 of the Decision.  The reasons for the Board’s finding is set out in paragraphs 85 to 102.  In gist, in order to covert his land the 1^st Applicant’s uncle threatened to kill him and caused the police to frame him up in a criminal case.

7.The 1^st and 2^nd Applicants are husband and wife respectively.  The 3^rd and 4^th Applicants are their children.

8.The 1^st Applicant inherited one quarter of a plot of land from his grandfather for having looked after him.  That caused resentment from one of his two uncles, Gurmail Singh (“GS”), though his father and the other uncle had no objection.  GS has good relations with the police and has association with a powerful drug dealer in the village, Sukhwinder Singh (“SS”).

9.One day in 2005 while the 1^st Applicant was working on the land, GS, SS and some armed men approached him and threatened him to stop farming on the land.  They chased after him and hit him until he lost consciousness.  He later reported the incidence to the police, but the police took no action.  He was told by one of the officers that the police took no action because SS had paid them a bribe.

10.One day in December 2005, while he was working on the land, two policemen approached him and took him to the Ghara Police Station, detained him for the night, tortured him and accused him of having stolen a motorbike.  He was then charged before the Jalandhar Court. 

11.He was later acquitted of the offence on 26 February 2009, some three years later.  After that, the police continued to harass him.  He had often to bribe them to avoid being taken to the police station.

12.One night in November 2009, four masked men invaded his home, destroyed some properties and demanded that he transfer the land to GS or the whole family would be killed, including his newly born daughter. 

13.In 2010, SS became the village head.  Some police officer whom the 1^st Applicant had bribed warned him that he was going to be framed for another offence by SS and GS.

14.In December 2010, GS accompanied by some relatives and associates raided the 1^st Applicant’s home and assaulted him.  He was then admitted to hospital.

15.On the following day, the police visited the hospital.  The 1^st   Applicant told them what had happened.

16.On the next day, GS and SS visited the 1^st   Applicant in the hospital and told him that because he had informed the police, he and his family would be killed the next time.

17.After a week, the 1^st Applicant discharged himself from the hospital.  Thereafter, out of fear he and his family fled from their home and moved from place to place for five years until they flew to Hong Kong.

The finding of the Board

18.Despite some unexplained inconsistencies, the Board considered the centrepiece of the 1^st Applicant’s story stands and basically accepted his evidence.  The centrepiece of his case is the land dispute with his uncle GS; the three assaults and raids at his home by GS, SS and their associates; and the framing up and torture by the police.

19.The Board did not accept his submission about SS’s influence over the police.  The Board was referred to Country of Origin Information (“COI”) showing that SS was prosecuted for criminal offences under the Narcotic Drugs and Psychotrophic Substances Act.  The Board found that SS was not beyond the sanction of the authorities in India.

20.Having regard to the human rights record of India as described in the COI, despite the lack of objective evidence, the Board accepted that the 1^st Applicant had been tortured for the purpose of extorting a confession and framed for theft at the instigation of GS and SS.  However, his acquittal is a confirmation that the police and SS were not above the law.

21.The Board was satisfied that the harm and risk which the 1^st Applicant would face, if returned to India, are localised in his home state of Punjab.  Having regard to the 1^st Applicant’s background and the relevant COI, the Board concluded it would be reasonable to expect the 1^st  Applicant to relocate to an alternative place outside Punjab to avoid his harm and risk; and it would not be unduly harsh to expect him and his family to do so.  The Board considered the State of Uttar Pradesh and Delhi possible alternative locations.

22.In respect of Torture Risk ground, the Board did not consider there are substantial grounds for believing the 1^st Applicant to be in danger of being subjected to torture within the meaning of section 37U(1) of the Immigration Ordinance, if returned to anywhere in India other than the State of Punjab and it would be neither unreasonable nor unduly harsh for him to move to such alternative places with his family.

23.Likewise, in respect of BOR 3 Risk ground, the Board did not accept that the 1^st Applicant would face a genuine and substantial risk of being subjected to ill-treatment sufficiently serious to reach the minimum level of severity for it to fall within the scope of BOR 3, if he is relocated to elsewhere in India.

24.In respect of BOR 2 Risk ground, the Board was not persuaded that the 1^st Applicant would face a personal and substantial risk of his right to life being violated if so relocated.

25.In respect of Persecution Risk ground, the Board found the 1^st Applicant has failed to prove a well-founded fear of being persecuted for one of the five reasons set out in the Convention Relating to the Status of Refugees, ie by reasons of race, religion, nationality, membership of a particular social group or political opinion, which is a necessary requirement under this ground.

Conclusion     

26.The 1^st Applicant has not advanced any specific grounds in support of his application.  The Applicants even refused to accept the court’s letter inviting them to make submissions. 

27.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 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].

28.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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board basically accepted the 1^st Applicant’s evidence about his fear of harm and risk.  The 1^st Applicant cannot complaint that this finding is unreasonable or irrational.  Then, the Board went on and found that the harm and risk is localised in the State of Punjab.  On the basis of the COI, the Board found internal relocation a viable option to avoid the harm and risk.  The COI relied on by the Board is incontrovertible.  These are findings of facts within the province of the Board as the tribunal of fact.  In the Court’s view, the Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found the 1^st Applicant is not entitled to non-refoulement protection under any of the four applicable grounds.  As the other Applicants’ claims hinge on the 1^st Applicant’s, their claims necessarily fail.  The Decision was utterly without fault.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 7^th day of May 2021.

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)