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

HCAL 1558/2019

[2023] HKCFI 2663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1558 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”) given to him on 6 June 2019 (the “Decision”).  That Decision is referable to a decision of the Board dated 15 April 2019 refusing his appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 March 2018 (the “Notice”) rejecting his non-refoulement claim.

2.The Applicant is an Indian national, now aged 32.  He entered Hong Kong lawfully, but overstayed his visa since 12 October 2016.  He then lodged a non-refoulement claim by written signification on 7 November 2016.  He filed his detailed non-refoulement claim form (“NCF”) dated 5 March 2018.  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].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of the Decision of the Board.  He had not requested 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 leave application be determined on paper without an oral hearing.

The Applicant’s case

3.The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that, if refouled, he would be ill-treated by Akali Dal Party (“ADP”).

4.The Applicant is married.  His wife and son are living in India.  He claimed that since leaving school at the age 19, he worked for the Indian National Congress party (“INC”), which was the strongest opposition party against ADP and Bhartiya Junta party at the time.  His role was to put up banners and posters in the community, promoting public awareness of INC and promoting INC.  His uncle was nominated in the village council election for INC.  One night in 2012, while driving home on a motorbike he and his uncle were intercepted and attacked by five ADP people (the “first incident”).  His uncle’s wrist was cut by a sword.  The Applicant’s head and right eyebrow s were cut by a small knife.  They managed to escape and went to a hospital for treatment.  The hospital called for the police, but the police never came.  After their discharge they went to the police station to make a report.  The police officer persuaded them to settle the case privately as the case would damage INC’s reputation.  Eventually, INC and ADP had a private settlement with ADP people reassuring them that this would not happen again.  However, the Applicant and his parents were worried about his safety.

5.The Applicant planned to flee to New Zealand where his wife would attend an English course.  ADP came to know about his plan and framed a case of possession of drugs against him (the “second incident”).  As a result, he was unable to leave India.  He said on 15 May 2012, he received a call from an INC member to settle some dispute and a car was arranged to pick him up.  As he was being driven to the destination, the car was stopped and searched by a police officer.  A bag of drugs was found.  The owner of the car alleged that the bag of drug was the Applicant’s. The owner and the Applicant were taken to the police station where the Applicant was induced to sign on a blank sheet of paper after promising him that he would be released after signing.  The Applicant’s father confronted the owner of the car who disclosed that he was a member of ADP.  The Applicant subsequently appeared before the court and was fined 4,500 rupees.  He said the INC member colluded with the owner of the car to frame him for the offence.  His uncle forced him to quit INC because of the damaging media scandals.  On his parents’ advice, the Applicant and his wife moved to his in-laws’ place in Haryana, 120 kilometres away, where they stayed for six months.  Then, the Applicant returned to his hometown. 

6.On 1 May 2013, two ADP people armed with knives came to the Applicant’s home and uttered foul language (the “third incident”).  The Applicant’s father went to confront them and was attacked and injured.  The Applicant came out to help his father.  The assailants’ family also came.  They asked the Applicant’s family to leave INC. The Applicant’s father called for the police.  The police came but did nothing other than telling them to go the police station the following day for settlement.

7.During the settlement talk, the assailants accused the Applicant’s father of attacking their old mother.  The police asked the Applicant’s father to apologise.  No settlement was reached.

8.Then, one of the assailant’s sons accused the Applicant’s father of assault.  The Applicant’s father was taken to SDM Court, a village council which asked them to settle their dispute, otherwise it would have to file a claim to the higher court. The Applicant drafted the settlement terms to the effect that both parties would not pursue this incident further and not make any claim for damages against each other.

9.Before the 2016 election, while the Applicant was putting up banners and posters for INC the same five ADP people approached him (the “fourth incident”).  They told the Applicant to stop and threatened to kill him if he continued putting up banners and posters.  They also told him to tell his uncle to withdraw his nomination for the election.  The Applicant informed his uncle about the incident.  They both agreed to ignore the threat as they thought it was just an empty threat and continued with their promotional work.

10.About a month before the election, a man known to his uncle offered his uncle a large sum of money for withdrawing his nomination.  His uncle refused.

11.In June 2016, two men imposed as police officers came to the Applicant’s shop and accused him of violating the law by uploading music without permission (the “fifth incident”). They demanded 8,500 rupees to resolve the case.  The Applicant called the police and found out it was a scam.  The police officer told the Applicant to call the police if the men came again.  The Applicant’s employee paid the men 4,500 rupees in order to entice them to come again.

12.One of the men came again.  The Applicant rang the police and beat the man at the same time.  The man confessed that he was not from the police but paid by ADP to commit the scam. 

13.In view of all these events, the Applicant and his family thought his life was in danger.  He thought internal relocation was not a viable option.  Hence, he came to Hong Kong for his safety.

The finding of the Board

14.The Applicant testified before the Board.  He introduced a lot of new evidence not contained in his NCF, for example, that his parents have disowned him; he had two businesses in India, one of which is still operating; that he was a chief of INC; that he had gone hiding in Shimla many times and was located by his enemies, etc.

15.The Board identified numerous and significant inconsistencies between the Applicant’s case as stated as stated in his NCF and his oral testimony before the Board.  The nature and number of the inconsistencies are so significant as to undermine the credibility of his case.  These inconsistencies include whether during the first incident he and his uncle were riding on a motorcycle or in a car when they were attacked and whether the assailants were masked.  The Applicant also failed to produce the medical evidence about his injury suffered during the incident as he had promised.  He mixed up what happened and the number of assailants involved during the first and incident with those in the fourth incident as to cast serious doubts on the credibility of his evidence.  He changed his evidence whether the caller who asked him to board the car in the second incident was an INC or ADP member.  The inconsistencies cast a wholly different light on the credibility of his evidence about the second incident.  The Applicant claimed to be the owner of the shop called Chopra Telecom in the fifth incident, that the person who attempted to practise a scam on him was sent by the police and Naganpreet Singh was his employee.  This is inconsistent with a newspaper article showing that Naganpreet Singh was the owner, the fraudster claimed to be from Sinotech and the name of the shop was Chopra Mobile. 

16.In conclusion, the Board found the Applicant is not a witness of truth and did not accept his evidence.  It found that the Applicant would not be at risk of any harm if he returned to India and there is not a real risk that he would face any harm should he be refouled.  Applying the law applicable to non-refoulement protection to the facts found, the Board came to the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM.

The legal principles applicable to judicial review

17.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, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

18.The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he repeated he has problem in India and asked the court to allow him to stay in Hong Kong.  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.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.

Discussion and conclusion

19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds.  These are findings of facts which are exclusively within the province of the Board to make, 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 not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated 19^th day of October 2023.

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 [14(1)]