Harbhajan Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL546 /2019

[2022] HKCFI 1357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 546 of 2019

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 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”) dated5 December 2018 (the “Decision”).

2.The Director of Immigration (the “Director”) is named as one of the proposed respondents in the Form 86, but no relief is sought against his decision.  In the context of the Applicant’s application, the only relevant decision made by the Director is the Notice of Decision dated 30 January 2018 (the “Notice”) which is the subject matter of the Decision.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2].  The Notice is not a subject matter of this application.

3.The Applicant is a national of India, now aged 46.  He entered Hong Kong on 12 July 2001 as a visitor and was permitted to remain until 14 July 2001.  He overstayed thereafter and was arrested on 12 May 2007.  On 16 May 2007, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) which was rejected by an immigration officer on 30 June 2011. His petition against the decision of the immigration officer was dismissed on 4 August 2011.  As he did not pursue that Torture Claim further, that decision became final.  Following the implementation of the Unified Screening Mechanism (“USM”), he made a non-refoulement claim by written signification dated 13 May 2013.  His claim was assessed on all applicable grounds under the USM other than the Torture Risk ground, namely BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5] grounds.  By his Notice dated 30 January 2018, the Director rejected his claims under these three grounds. 

4.The Applicant appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 5 December 2018. On 26 February 2019, he applied for leave to apply for judicial review of that Decision.  The Applicant 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 Applicants’ case

5.The following account of the Applicant’s case is mainly based on the information in the questionnaire filed for his torture claim (“TCF”) and a supplementary claim form (“SCF”) prepared by him with legal assistance and the record of two interviews which he attended with legal representation.  In gist, his claim is based upon his fear that he would be harmed or killed by the family and husband of Kaur with whom he had a previous romantic relationship which was disapproved by Kaur’s family because of their different caste and by his own brother and the Sikh population because of his inter-religious marriage with his Indonesian Muslim wife.

6.The Applicant was born in Haryana, India.  His father worked as a farmer and he has three siblings who reside in India.  He developed a romantic relationship with Kaur in around 1998 and they wished to get married in the future.  Kaur was four years younger than him and belonged to an upper caste (Jat Sikh caste) while the Applicant belonged to the middle caste (Labana Sikh).  Both families therefore objected to their relationship.  Despite the objection, he and Kaur maintained their relationship in secret.

7.Kaur’s brother and her father have connection with the Congress Party.  Kaur’s brother had threatened twice to kill the Applicant if he continued to see Kaur.  The Applicant did not stop seeing Kaur.  One evening in March 2000, two days after meeting Kaur, Kaur’s brother and ten to twelve men attacked the Applicant with wooden sticks, fists and kicks.  The attack lasted for 10 to15 minutes and the Applicant fell unconscious.  Kaur’s brother threatened that he would not spare the Applicant next time.  The Applicant filed a police report but the police refused to record the complaint when they heard that Kaur’s family was involved. He received treatment in a small private clinic.  He received 16 stitches on his head and was given pain killers and an injection.  He was discharged from the clinic after two days.  Since the attack or two days before that, he had not contacted Kaur; neither had Kaur contacted him.

8.The Applicant’s family told him that Kaur’s family were looking for him after learning that he had made a report to the police and advised him to flee to his paternal aunt’s home in Aurangabad.  The Applicant fled and stayed there for about 15 days.  Then he left and worked as a truck driver assistant plying between Mumbai and Kolkata for about a year to avoid Kaur’s family.  During that time, his family told him that Kaur’s family were still looking for him.

9.In March 2001, that is about a year after the attack, Kaur’s father and brother told the Applicant’s parents that Kaur had attempted suicide.  They threatened that they would not spare the Applicant if they saw him again and would torture his parents if they did not arrange for him to go elsewhere.  Through his father’s arrangement, the Applicant left India for China on 11 May 2001.

10.Nothing happened to the Applicant or his family until 2012 when the Applicant’s mother told him that Kaur had married a police officer in 2011 under a marriage arrangement and it would be safe for him to return to India.  The Applicant informed the Immigration Department that he intended to return to India in 2012 or early 2013.  He also told his friend Balwinder Singh who is living in Hong Kong about his intention.  Then, Balwinder Singh broadcasted his return to everyone in his home village.

11.The Applicant said he had difficulties obtaining an Indian passport from the Indian Consulate in Hong Kong.  His mother told him that Kaur’s brother had visited her and indicated that his family “will not let his passport prepared.”  He suspected that Kaur’s father had exercised his influence to obstruct his application.  Then he informed the Immigration Department that he would remain in Hong Kong because his problem with Kaur’s family had not been resolved.

12.On 18 July 2014, the Applicant married his wife, a dedicated Indonesian Muslim working as a foreign domestic helper in Hong Kong. She gave birth to their daughter on 1 November 2014.  He visited Balwinder Singh with his wife and daughter.  Without his consent, Balwinder Singh announced the news of his marriage to a Muslim to everyone in his home village.

13.In 2015, the Applicant was informed that his mother was killed and his father injured when their motorcycle on which they were riding was hit by a jeep driven by Kaur’s brother but the police would not press charges against Kaur’s brother.  The Applicant believes that was because of Kaur’s brother’s connection with the Congress Party.

14.The Applicant feared that he will be harmed or killed by Kaur’s brother and her husband for having had an unapproved relationship with Kaur and were concerned that she would elope with him since she agreed to the arranged marriage on her brother’s false statement that the Applicant had died.  The Applicant is also afraid that his wife and daughter would face ill-treatment and persecution by his brother and the Sikh population in general because of their inter-religious marriage.

The finding of the Board

15.The Board did not make any factual finding about the credibility of the Applicant or his claim.  Except for his evidence about his fear of harassment from the general population and government institutions in India, the Board appears to have assessed his claim on the basis of the case as asserted by the Applicant and the availability of state protection and viability of internal relocation on the basis of credible Country of Origin Information (“COI”).  

16.The Board was satisfied that inter-caste marriage is protected under Indian law.  In fact, the Indian government provides financial incentives to promote inter-caste marriage.  The Punjab and Haryana High Court had ordered these states to provide shelter homes to runaway couples who married against the wishes of their families or the community and requested police to give them protection.

17.The Board was also satisfied that inter-religion marriage is protected in India.  The Supreme Court of India had reportedly instructed the courts to make honour killings a capital offence and instructed police and district officials to offer protection to inter-caste and inter-religion couples and to take actions against the perpetrators of honour killings in such marriages.

18.In relation to corruption and other problems, the Board was satisfied that the Indian government would not turn a blind eye to these problems and was implementing measures to improve the situation.  While there are reports of corruption, there are legislative changes and enforcement actions taken against errant officials and the police.  The Board did not accept that Kaur’s family had influence outside the Applicant’s home village and concluded that there are adequate channels for the Applicant to address his concerns about harassment and police inaction to his complaints.  The Board found that state protection of an adequate standard is available.

19.The Board also found that the Applicant may safely relocate to other parts of India, such as Delhi or Lucknow, as Kaur’s family is unlikely to be able to locate him outside his home village.  The Applicant claimed at the hearing that he would consider moving to Indonesia. 

20.As for the Applicant’s complaint about the obstruction in his application for Indian passport, the Board found it was a predicament of his own making because he refused for no good reasons to apply for an Indian emergency travel document but insisted on having his expired passport renewed.

21.Applying the law applicable to the three remaining grounds under the USM, the Board was not satisfied that the Applicant had proved his entitlement to non-refoulement protection under any of these grounds.

22.At the hearing, the Applicant confirmed that he was not at BOR 2 Risk.

23.As for BOR3 Risk, the Board found on the basis of the Applicant’s evidence that the alleged ill-treatment did not attain the minimum level of severity to qualify for protection under this ground.  Further, given that over 18 years had passed since the attack, the Board did not accept that he would still face a genuine or substantial BOR3 risk.

24.As for the persecution risk, the Board found that the Applicant’s claim was based on a “family dispute” between him and his family or Kaur’s family.  That is a finding of fact which was open to the Board to make on the evidence.  Then the Board expressly found that the Applicant’s feared ill-treatment was not on account of his race, nationality or membership of a particular social group[6] (leaving out on account of religion or membership of a particular political opinion).  By implication, the Board must have accepted in favour of the Applicant that the feared ill-treatment may be on account of the Applicant’s wife’s religion (not the Applicant’s religion) and the Applicant’s membership of a particular political opinion.  On that basis, the Board found the dispute was over the Applicant’s right to marry a person of his own choice, one from a different caste, and another religion and there is no evidence that the Sikhs, as a religious group, would be after the Applicant personally[7].  The Board then concluded that the Applicant’s fear did not fall within the protection under the 1951 Convention relating to the status of Refugees[8], namely, on account of his race, religion, nationality or membership of a particular social group or political opinion (the “Convention reasons”).

25.With respect, arguably, ill-treatment arising from potential inter-caste marriage may be on account of the Applicant’s membership of a particular social group and ill-treatment arising from inter-religion marriage may be on account of the Applicant’s wife’s religion.  Though it may not be on account of the Applicant’s own religion, his own religion was actually the underlying cause of the ill-treatment.  Arguably, the Decision may have been reached as result of an error of law. 

26.However, the Board found there was no evidence that the Sikhs as a religious would go after the Applicant personally for the inter-religion marriage; and on the evidence and material available assessed the risk of any feared ill-treatment to be low.  It was on this basis that the Board found the Applicant is not entitled to non-refoulement protection under Persecution Risk ground.  This is the ratio decidendi of the Board’s Decision.  In other words, even if the ill-treatment were on account of one or all five of the Convention reasons, the risk of ill-treatment is low and would not entitle the Applicant to protection.  Thus, this error of law is not operative or fatal to the Decision.

27.For the above reasons, the Board found the Applicant is not entitled to protection under any of the remaining three grounds under the USM and dismissed his appeal.

Grounds for judicial review

28.The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation.  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 only replied that his first language is Punjabi and provided his telephone number.  He did not file any submission.

29.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.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India. 

Conclusion

30.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].

31.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 three 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 the case as he asserted.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the three remaining applicable grounds under the USM.  Save for the minor blemish mentioned in paragraphs 24 to 26 above which is not fatal to the Decision, the Court could not detect any error of law in the Decision.  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. 

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

Dated 12^th day of May 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