Gurmail v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 540/2019 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated14 February 2019 (the “Decision”). He did not name the proposed respondent in his Form 86. He only identified the decision sought to be reviewed by date. He exhibited a copy of the Decision in his supporting affirmation. Thus, the Court identified the decision sought to be reviewed as the Decision
Cites 2 cases
|
HCAL 540/2019 [2022] HKCFI 1258 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 540 of 2019 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 To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated14 February 2019 (the “Decision”). He did not name the proposed respondent in his Form 86. He only identified the decision sought to be reviewed by date. He exhibited a copy of the Decision in his supporting affirmation. Thus, the Court identified the decision sought to be reviewed as the Decision of the Board. Accordingly, leave was granted to amend the Form 86 by making the Board the proposed respondent. 2.The Applicant is a national of India, now aged 27. He attempted to enter Hong Kong on 2 December 2015 via Lok Ma Chau but was refused permission to land. He was promptly removed to Shenzhen. On 8 December 2015, he entered Hong Kong illegally by boat and was arrested. On 11 December 2015, he raised a non-refoulement claim. 3.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 13 September 2017 (the “Notice”), the Director rejected his claims under all four applicable grounds. He appealed to the Board against the decision in the Notice. His appeal was dismissed by the Board’s Decision. On 25 February 2019, he applied for leave to apply for judicial review of that Decision. 4.He 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 it appropriate that the application be determined on paper without an oral hearing. The Applicant’s case 5.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 and the record of his screening interview in the presence of his lawyer. 6.The Applicant was born and raised in Haryana, India. His parents are farmers and his family resides in India. The Applicant has five years of working experience as a farmer. He dated a girl in the same village called “Preeti”, while he was studying in college. They had sex and Preeti wanted to marry him. At the time, he was 20 years old while Preeti was 14 or 15 and studying class 9. 7.The Applicant was from a higher caste than Preeti, but Preeti’s father was the biggest landlord in the village and the head of village. Her uncle was a member of the Congress Party. The Applicant and Preeti agreed to keep their relationship secret because of their different castes and because they had sex while Preeti was still underage. 8.Their relationship was nevertheless reveal after two months when the Applicant’s taped telephone conversation with Preeti was circulated. Preeti’s family contacted the Applicant’s father and threatened to put the issues before the village council, which according to the Applicant had the authority to impose punishment, including capital punishment, on him. Through his father, Preeti’s brothers threatened to kill the Applicant if he continued to see Preeti. 9.The Applicant was detained by the police on the next day on suspicions of having had sex with an underage girl. The inspector warned the Applicant not to have anything to do with Preeti again and released him after the Applicant’s father paid a bribe to the inspector. 10.The Applicant went to the college two days later. He was told that Preeti’s family members and friends were waiting for him. He went back to his home to avoid them. After a few days he went to his farmland to meet his friends. He ran into three of Preeti’s cousins. They beat him with sugar canes for less than a minute and threatened to kill him the next time they meet. Later, some villagers told the Applicant’s father that Preeti’s family was planning to kill him. 11.On 26 November 2015, through his father’s arrangement, the Applicant flew to Mainland China where he stayed for five days before entering Hong Kong in the aforementioned manner. The Applicant last contacted his family in August 2017. He was told that Preeti’s family was still talking about killing him. The finding of the Board 12.The centrepiece of the Applicant’s case before the Director as stated in his NCF was that he was being pursued by Preeti’s family for having had sex with her while she was underage. However, his case before the Board was completely different. He said he knew nothing about Preeti other than that she was 14 to 15 years old studying class 9. He said he had watched Preeti going to and from school once or twice, had talked to her on the phone for 10 to 15 days before the taped conversation was circulated and had never spoke to her again since. That was the extent of their contact. He retracted his allegation that Preeti wanted to marry him. He said they never discussed marriage. He explained that “we had contact for a short time, otherwise we would have married.” 13.The case advanced by the Applicant before the Board was substantially different from that before the Director. The Board found the Applicant incredible and did not accept his evidence. It found the Applicant had “greatly exaggerated the depth and nature” of the relationship with the underage girl. Not only did the Board find he had failed to prove his story about having a very good and close relationship, including a sexual one, with Preeti, the Board was satisfied that his story is untrue. It held even if there is any truth in the Applicant’s claim of having had a problem with the family of a young girl in his village with whom he had any relationship, his claims of fear of violence at the hands of the girl’s family are not credible. Accordingly, the Board concluded that the Applicant has not established substantial grounds for concluding that there is a real risk that he would suffer serious harm at the hands of Preeti’s family or anyone else should he return to India. 14.Applying the law applicable to the four grounds under the USM to the facts found, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal. The applicable legal principle 15.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 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]. Grounds of application 16.The Applicant did not state the grounds for judicial review in his Form 86. In his supporting affirmation, he only annexed a copy of the Decision of the Board. He mentioned nothing in his Form 86 or supporting affirmation as to what was wrong with the Decision which called for judicial review. He had been invited by the Court via its letter dated 13 December 2021 to advise the Court of his first language and to file submissions. He did not respond. The letter was addressed to his address as stated in his supporting affirmation dated 25 February 2019. It has not been returned through the post. There is nothing to suggest he has not received the letter or has moved from that address. 17.The essence of the Applicant’s complaint must be that he disagrees with the finding of the Board that it is safe for him to return to his home country. In the absence of specific grounds of application, the Court 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. Discussion and conclusion 18.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. 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; correctly identified the issues and observed a very high standard of fairness. The Board rejected the Applicant’s case as untrue. The Applicant had therefore failed to prove the factual basis to support of his claim to non-refoulement protection under any of the four applicable grounds under the USM. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 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 finding 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 and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. 19.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused. Dated 29th day of April 2022
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 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 [14(1)] |
Cases cited in this judgment
Further hearings and rulings under HCAL 540/2019