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

HCAL 671/2019

[2022] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 671 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 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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 illegally on 17 January 2016 and was arrested on the same date.  On 19 January 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncles and aunties.

5.  According to the applicant, his fear originated from the family disputes between his family and two parental uncles, Rajinder and Bupinder.  In short, Rajinder and Bupinder, together with their wives, were eyeing on the applicant’s grandfather’s assets, including two plots of land.  Bupinder’s wife Kulwant also demanded a share of the family house. Bupinder stole the applicant’s jewelry.  After the death of his grandfather in 2007, they started to fight for the assets.  Despite reaching an initial settlement, Kulwant subsequently withdrew from it and started to harass the applicant.  Kulwant also framed the applicant for attempting to burn her down. However, police did not lay the charge as he settled the matter with Kulwant.  Thereafter, the applicant’s other parental aunt Sukhwinder, dissatisfied with the applicant’s settlement with Kulwant, threatened to harm him if he did not give them shares too.  Apart from the constant threats, the applicant was physically attacked three times in 2009, 2013 and 2014 respectively.  The applicant believed that these attacks were orchestrated by Sukhwinder.  In 2015, the applicant’s father passed away and Sukhwinder continued to pose death threats.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 6 April 2018 by the Director (the “Director’s Decision”) and paragraph 19 of the Board’s Decision.      

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim for the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[22]; (ii) state protection was available to the applicant [23]-[35]; and (iii) internal relocation was a viable alternative [36]-[41].  

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 8 January 2019, the Board conducted an oral hearing for his appeal.

9.  The Board found that, on his own evidence, the alleged injuries from the three attacks were not serious.  It was also the applicant’s speculation that the police would not assist him. The threats from Sukhwinder after his father’s death were bare statements.  The Board also noticed that, in the past five years, the applicant only suffered minor injuries from three attacks, which showed that Sukhwinder had no intention to cause serious harms to him [22]. The Board also considered the country of origin information and concluded that state protection was available to him [25]-[27].  Further, when assessing his claim under Torture risk, the Board found that the family disputes were private in nature without state involvement.  In any event, internal relocation was also a viable option [40]-[43].  For these reasons, the Board rejected his claim on the rest of the applicable grounds and dismissed his appeal.  

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

10.  The applicant has filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant said he could not go back to his country as he had problems there.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

14.  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.”

15.  The ground in paragraph 11 above is not valid reason to challenge the Board’s Decision.

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

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

CONCLUSION

18.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s 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