Deepak Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2844/2018

[2021] HKCFI 1737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2844 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 Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”).

2.The Applicant is an Indian national.  He entered Hong Kong by air on 2 January 2016 and became an over-stayer since 17 January 2016.  On 18 January 2016, he applied for a non-refoulement protection claiming that he will be harmed or killed by his uncle (the “Uncle”) because of a land dispute, if refouled to India.

3.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 13 March 2018, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 19 November 2018.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

5.The Applicant’s grandfather left his farmland to his six sons, including the Applicant’s father and the Uncle.  His father inherited the only piece of land with a house built on it (the “Land”), probably because his father was the favourite son of the grandfather and had lived with the grandfather.  In March 2015, his father transferred the Land to the Applicant.

6.In June or July 2015, the Applicant happened to meet the Uncle.  The Uncle told the Applicant to tell his father to transfer the Land to the Uncle or the Uncle would not spare the Applicant.

7.In July or August 2015, while he was on his way to the college, the Applicant met the Uncle and three other men whom he did not know.   They attacked him with sticks.  They were subsequently stopped by some passers-by.

8.Ten or fifteen days later, the Applicant was attacked on his way to college by his Uncle and the three men.  They beat him for ten or fifteen minutes.  The Applicant’s father reported the assault to the police, but there was no follow up action by the police.  The Applicant believed his Uncle had bribed the police.

9.The Applicant went to stay with his sister in Uttar Pradesh during October and November 2015.  In November 2015, the Uncle arrived at the sister’s home and slapped the Applicant three or four times.  His Uncle told him that he could not hide for long and he would definitely kill the Applicant.  Then, the Applicant moved to rented accommodation and stayed there for 10 to 15 days before leaving India for Thailand and then to Hong Kong.

The finding of the Board

10.The Board identified significant problems with the Applicant’s evidence which cast doubt on the credibility of his claims overall.  The Board was concerned that the Applicant was unable to offer a plausible, rational or persuasive reason for his father’s claimed decision to transfer the Land to him which resulted in his having to flee India for his life.  The only explanation the Applicant could offer was that otherwise his father would be in danger of being killed.  It begs belief that a father would risk his only son’s life for his own safety.  A further concern is that the Applicant knew nothing about the process for transferring the Land to him.  The Board also found the Applicant’s evidence about his inability to obtain assistance from the police was vague and not persuasive. He asserted that the police did not act on his complaint because his Uncle had bribed them and had connections, but his only basis for the belief was that the police had not acted.  Then, he said he was told a number of times by unspecified people that his Uncle had links with the police. 

11.The Board accepted that it was possible that there has been some disputes between the Uncle’s and the Applicant’s families, but did not accept that the Applicant is the owner of the Land; that his father transferred the Land to him so that his father could avoid being harmed by the Uncle; that the Applicant was assaulted and threatened with death by his Uncle demanding that he transfer the Land to the Uncle.  The Board did not accept that the Applicant’s Uncle continued to threaten to kill him regardless of the land issue.  It did not accept that the Applicant is at any risk of harm of any kind from his Uncle should he return to India.  On the Board’s finding, there is no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Applicant failed to discharge his burden of proving his entitlement to protection.  The Board went further to hold that even if the Applicant’s fear and risk were genuine, internal relocation is an available option to avoid the risk.  The Board was satisfied that it is both reasonable and not unduly harsh for the Applicant to reside in another part of India where he would not be at risk of harm from his Uncle.

12.The Persecution Risk ground requires that the harm feared is motivated by or more of the reasons under the 1951 Convention Relating to the Status of Refugees, namely, race, religion, nationality, membership of a particular social group or political opinion (“Convention reasons”), and the Applicant must be unable, or unwilling because of his fear to avail himself of the protection of his country.  The Board held that even if the fear and risk were genuine, they arose out of a family dispute over land and not from one of the five Convention reasons.

13.In respect of the Torture Risk ground, the Board was not satisfied that the harm involved meet the definition of torture defined in section 37U(1) of the Immigration Ordinance, namely that the ill-treatment reached the minimum level of severity; that it would be inflicted for one of the purposes stated in the section and by or at the instigation of a public official or person acting in an official capacity or with his consent or acquiescence.  Further, the Board considered internal relocation a possible option to avoid the risk.

14.In respect of the BOR 3 Risk ground, the Board found on the evidence that the Applicant failed to establish that there are substantial grounds or strong grounds for believing that he would face a real risk of being subjected to torture, cruel, inhuman or degrading treatment or punishment.

15.In respect of the BOR 2 Risk ground, for the same reasons, the Board was not satisfied that there are substantial grounds for believing that there is a real risk that the Appellant will be arbitrarily deprived of life if he returns to India.

Grounds for judicial review

16.The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review.  He filed an affirmation dated 11 December 2018, exhibiting the Decision and a two-page statement in support of his application.  In his statement, he repeated his fears and his Uncle’s threat.  Other than expressing his disagreement with the Decision, the statement contains no criticism based on procedural unfairness, unreasonableness and irrationality.

17.The Applicant was invited by letter dated 18 May 2021 to file, inter alia, any submission which he would like to make.  In his submission, he only repeated his wish not to return to India because his life is in danger.

18.At the hearing on 10 June 2021, repeated attempts were made to ascertain from him any possible basis for judicial review of the Decision, such as procedural unfairness, unreasonableness or irrationality in the Decision.  The Applicant confirmed “everything is perfect.”  His only complaint is about the Board’s finding of facts. 

19.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[5].  Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

20.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 burden of proof and standard of proof; and observed a very high standard of fairness.  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.  This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are findings 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 Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

21.For the above reasons, leave to apply for judicial review was refused.

Dated the 17^th day of June 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)