Roshan Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 541/2019 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”) dated 22 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 Decisio
Cites 1 case
|
HCAL 541/2019 [2022] HKCFI 1257 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 541 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”) dated 22 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 38. He entered Hong Kong on 29 July 2015 as a visitor and was permitted to remain until 12 August 2015. He overstayed and was arrested by the police on 20 November 2015. On 23 November 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 12 July 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 prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant’s claim is based on his fears that if returned to India, he will be ill-treated by his neighbours (the “Neighbours”) and by the ruling Bharatiya Janata Party (“BJP”) which is hostile to Muslims. 6.The Applicant was born in Punjab, India. He had received 10 years of formal education and had worked as a street vendor, a labourer and a security guard. He and all of his family members in his home village are Muslims. His family was the only Muslim family in the village; while all other families were Sikhs or Hindus. 7.The Applicant’s grandparents and family are long-time supporters of the Congress Party. They participated in the activities of the party. The Applicant received instructions from the president of the Congress Party of the local area. 8.One day, his Neighbours visited him. They invited him to join the Shiromani Akali Dal party (“SAD”) and to persuade the Muslims of the neighbouring villages to vote for the SAD candidate in the election to be held in 2005 or 2006. The Applicant refused. His Neighbours repeated the invitation two to three times in the two weeks that followed. Each time, the Applicant refused. The Applicant believed his refusal created enmity with his Neighbours. Subsequently, the wife of a SAD member was elected as president of the village council. 9.Around two months after the election, some hostility developed between the Neighbours and the Applicant’s family over the repair of the drainage system outside the Applicant’s house. Through the intercession of the village head, the Neighbours allowed the Applicant’s family to rebuilt the drainage in front of their house, which was the only practical way it could be rebuilt. 10.However, about ten days later, while the Applicant was sitting in front of his house with his friends, his Neighbours and two or three people came and attacked him with sharp weapons and bamboo sticks. The attack lasted several minutes and the Applicant fell unconscious. He received treatment in the clinic village where he was hospitalised for two days. He suffered head injuries, an open wound and bruises. He also experienced memory loss, frequent nightmares and sudden fainting and insomnia. 11.After his discharge from the clinic, the Applicant made a complaint to the police station about the assault. However, the duty officer did not record his complaint and sent him away. 12.Two days later, the Applicant was summoned by the Senior House Officer of the police station. He went to the police station and met the Neighbours, the president of the village council, the village head, the president of the Truck Union and a member of SAD. They pressurised the Applicant to relocate the sewage elsewhere. The Neighbours threatened to torture the Applicant if he did not agree. Under coercion, the Applicant agreed and signed on a document. 13.On the next day, the Applicant commenced the works to relocate the sewage. The work was completed within a week costing him about 40,000 Rupees. Despite that, the Neighbours were still very hostile towards him and kept quarrelling with him for trivial matters. 14.One day, about ten villagers came to the Applicant’s house and demanded his family to leave the village, saying that the village did not belong to any Muslim. They harassed his family three to four times in the next few weeks. The Applicant’s family believed these villagers were instigated by the Neighbours to cause trouble to his family. 15.The Applicant and his three brothers could not stand the harassment and left the village to live in different parts of India. His parents stayed in the village and visited him from time to time. They told him that the Neighbours were still looking for him. 16.The Applicant subsequently sneaked into Lebanon in October 2007, where he took up employment and stayed there for around five and half years. During that period, the Neighbours and the villagers remained hostile towards his family. 17.The Applicant returned to India on 16 February 2013 to see his mother who had suffered an electric shock and was in critical condition. His Neighbours intercepted him on the road and humiliated him. They did not physically attack him. Then the Applicant went to stay with relatives in different parts of India. He went to Sri Lanka in early April 2015 and arranged his passage to Hong Kong. He returned to India on 3 July 2015 and then flew to Hong Kong in late July 2015. He arrived in Hong Kong on 29 July 2015. 18.While he was in Hong Kong, his parents told him that his brother was beaten up by ten villagers with bamboo sticks for refusing to switch to Sikh religion or Hindu religion. 19.In addition to the alleged threats from the Neighbours, the Applicant also advanced a separate claim based on his fear of harm from the ruling party Bharatiya Janata Party (“BJP”). His fear is solely based on his belief that BJP is anti-Muslims. He admitted to the Board that he had no proof of his belief. The finding of the Board 20.There are two sources of fear in the Applicant’s claim, one from the Neighbours and one from BJP. It would be convenient to deal with the second source first which is simpler and to get it out of the way. 21.The Applicant’s fear of harm from BJP was based solely on his belief and understanding from the news media and television. He admitted to the Board that he had no evidence that the ruling party BJP is against him personally. On the assumption that his belief is true, the Board found that there is nothing to show that BJP is targeting the Applicant personally. Hence, the Board came to the conclusion that the Applicant will not face any personal risk of harm from BJP, if he returns to India[5] and rejected his claim based on that fear as totally ungrounded. 22.The Board assessed the Applicant’s claims of harm from his Neighbours seemingly on the basis of the case as asserted by him. It noted that as at the date of the Notice, twelve years had lapsed since the attack in 2006 but the Neighbours had not done anything to harm the Applicant. They had visited the Applicant’s home looking for him while the Applicant had left the village. The Board found that the Neighbour’s purpose was to ask him to leave the village. They intercepted the Applicant when he returned to the village in 2013. They only humiliated him but did not harm him. The Neighbours had never threatened to kill the Applicant and had never attempted to kill him despite they had ample opportunities to do so. Hence, the Board found his Neighbours had no intention to kill the Applicant[6] and that the purpose of the harassment was to force him to leave the village. The Board then held, if the Applicant relocates to areas other than his home village, that would satisfy the wishes of his Neighbours and it is extremely unlikely that the Neighbours will take the trouble to locate him and kill him for that would serve no purpose[7]. 23.The Board went on to find on the basis of credible Country of Origin Information (“COI”) that internal relocation to New Delhi or Mumbai would be viable options to avoid the risk and harm from his Neighbours and that it would not be unduly harsh to expect the Applicant to so relocate, given his age and experience. Further, though there was evidence of police bias, the Board was satisfied that the acts by the officers in a single police station could not represent the acts of the Indian police force as a whole. The Board was satisfied from the COI that state protection of an adequate standard is available to protect the Applicant against harm from his Neighbours. 24.Then the Board concluded that “since state protection and internal relocation are available to [the Applicant], the perceived risk from the [Neighbours] would be negated or reduced. Hence his feared ill-treatment is unlikely to materialise.”[8] 25.The Board then rejected the Applicant’s claim under the Torture Risk ground for the reason that his feared ill-treatment is unlikely to materialise and that the feared ill-treatment fell outside the meaning of “torture” under section 37U(1) of the Immigration Ordinance as there was no evidence that the Neighbour’s acts were endorsed or acquiesced by the state of India. 26.As the Applicant’s Neighbours had no intention to kill him and his feared ill-treatment is unlikely to materialise, the Board found the Applicant does not face a genuine and substantial risk of being subjected to BOR 2 Risk on his return to India and dismissed his claim based on BOR 2 Risk ground. 27.The Board correctly referred to the authorities that to succeed under BOR 3 Risk ground, a claimant has to establish (a) that the ill-treatment which he would face, if refouled, would attain a minimum, level of severity and (b) that he faces a genuine and substantial risk of being subjected to such treatment. Without making any assessment if the feared ill-treatment would attain a minimum level of severity, the Board dismissed his claim based on BOR 3 Risk ground on the basis of its assessment that the Applicant’s feared ill-treatment is unlikely to materialise. 28.Lastly, the Board dismissed the Applicant’s claim under Persecution Risk ground on the basis that his feared ill-treatment is unlikely to materialise and that the feared ill-treatment fell outside the protection of the 1951 Convention relating to the status of Refugees as it was inflicted because of a personal dispute between the Neighbours and the Applicant and for any of the reasons protected by the Convention, namely for reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicable legal principle 29.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[9]. Grounds of application 30.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 telephone contact number and to file submissions. He replied stating his first language and telephone number but did not file any submission. 31.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 32.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. 33.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 assessed the Applicant’s claim on the basis of his case as asserted by him. It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 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 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. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. 34.For the above reasons, leave is granted to amend the Applicant’s application by naming the Torture Claims Appeal Board / Non Refoulement Claims Petition Office as the putative respondent; but the application as amended 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] Paragraph 43 of the Decision [6] Paragraph 62 of the Decision [7] Paragraph 42 of the Decision [8] Paragraph 53 of the Decision [9] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment