RANJODHBIR SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 865/2019

[2023] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated on 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 1 November 2008 and was permitted to remain until 15 November 2008.  However, he did not depart and had overstayed since 16 November 2008. On 26 August 2009, he was arrested by the police for overstaying.  On 7 October 2009, he raised a torture claim.  Upon the implementation of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by his company boss, Ajit, and his uncle Ajaib.

5.  The applicant’s claimed fear of harm originated from an industrial accident which killed Ajit’s brother, Amrik.  According to the applicant, in around 2007 to 2008, he was promoted to the rank of senior crane operator.  On 15 January 2008, when he was supervising a junior crane operator named Bilal on site, he fell asleep.  Shortly after, the crane suddenly slipped off the road and fell into a deep hole which was dug for building.  The applicant lost consciousness and was taken to the hospital.  Thereafter, the police came to enquire the applicant and Bilal about the accident.  A few days later, Ajit visited the applicant and informed him of the death of Amrik in the accident. He threatened to kill the applicant if the applicant did not compensate for his loss.  However, he left without harming the applicant.  Out of the concern for safety, the applicant escaped to another village.  Nevertheless, in around April 2008, while he was working in a shop, he was abducted and assaulted by some men.  Yet, he did not report to the police as he believed that they were affiliated with Ajit.  While Amrik’s death was later said to be a lie, the applicant still decided to seek protection in Hong Kong.  In addition, the applicant feared that he would be chased after by Ajaib due to the family land dispute.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 August 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  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 (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk.  In elaboration, the Director found that (i) the alleged enemies had no real intention to cause harm or even kill the applicant [12]-[16]; (ii) state protection would be available to him [17]-[18]; and (iii) internal relocation was a viable option [19]-[22].

8.  For reasons set out in the Notice of Further Decision dated 18 April 2017, the Director found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board.  On 8 April 2016, the Board conducted an oral hearing for his appeal, during which he chose not to testify [3].

10.  Having considered all the evidence, the Board found that the level of risk of harm upon the applicant’s refoulement was low [26].  In particular, the Board considered that the words uttered by Ajit, according to the applicant’s own recollection in his written statement, were not threats as Ajit did not express any intention to harm or kill the applicant.  Ajit simply stated that he wanted the compensation.  Thus, if he killed the applicant, he would not be able to get any [28].  The applicant’s allegation that he was assaulted by Ajit’s men was a mere speculation without any proof [30].  Meanwhile, the applicant alleged that the attackers were indeed sent by Ajit who, in the applicant’s belief, would kill him in case of non-payment.  Yet, the attackers did not kill the applicant or demand the applicant to pay Ajit.  In addition, there was no evidence showing that Ajit had been looking for him all over the country [31]-[37].  As a result, the Board concluded that the risk of harm from Ajit was low.  As to the claimed fear of harm from his uncle, the Board concluded that there was simply no indication that his uncle would harm or kill him due to the land dispute [38]-[39].

11.  In any event, state protection and internal relocation were both viable options for the applicant [40]-[47].  In assessing the individual grounds, the Board further found that the disputes remained private without state involvement [56].  For the above reasons, on 23 February 2017, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).  The applicant did not take out any application for leave to judicial review the Board’s First Decision, which has become final.

12.  For the applicant’s appeal against the Director’s Second Decision, the Board held an oral hearing on 23 October 2018, during which the applicant again chose not to testify [3].  In light of the findings made in the Board’s First Decision, and the fact that the applicant did not provide any new and additional information, by way of the Board’s Second Decision, the Board found that the applicant’s claim on BOR 2 risk was equally unsubstantiated.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 29 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Second Decision because his life is not safe in his country.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Second Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Second Decision should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.  The ground raised in paragraph 14 is only his opinion, without any evidence in support of it. The applicant has not been able to raise any valid reason to challenge the Board’s Second Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

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