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HCAL 936/2018
[2020] HKCFI 2474
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 936. OF 2018
BETWEEN
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Narinder Singh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1989, is a national of India. He arrived in Hong Kong on 4 January 2014 and was permitted to remain for 2 weeks as a visitor. He overstayed and was arrested by the police on 20 January 2014. He then lodged a non-refoulement claim. He was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [3-13] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the father and brothers of his girlfriend because of their objection to their relationship. He and his girlfriend’s family have different religious beliefs. His girlfriend’s family is rich and her father is related to a political party. He had been assaulted and threatened by her family that he would be killed if he did not stop seeing his girlfriend.
The Director’s decision
4. By a notice of decision dated 28 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
5. The applicant attended a hearing before the Board on 27 March 2018.
6. By a decision dated 17 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave reasons for rejecting the applicant’s claim at para [27-45] of its decision. In a nutshell, the Board found:
(1) The applicant’s evidence not incredible [27];
(2) The incidents arose from a private matter [30];
(3) The attack in 2008 was not a serious one and the threats uttered in late 2008 were not accompanied by actual violence, his girlfriend’s family had no intention to kill or seriously harm the applicant [34];
(4) State protection is available and internal relocation is a viable option [38].
8. The Board concluded that the applicant failed to establish a real likelihood of risk pertinent to any of the applicable grounds in his claim.
Application for leave to apply for judicial review
9. The applicant filed a Form 86 on 25 May 2018 for leave to apply for judicial review of the decision of the Board.
10. By a letter dated 12 June 2020, the court invited the applicant to submit any submissions that he would like to make and indicate whether he would like to have an oral hearing. Since then, the applicant has not made any response or submission to the court. The application is therefore considered on the papers.
11. In the Form 86, the applicant did not set out any ground for the relief sought. In the affirmation in support, he stated “they disregard my dangerous situation.”
Discussion
12. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
13. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on discussing the latter’s decision.
14. In the present case, the Board accepted the asserted facts most favourable to the applicant. It only disagreed with him on the assessment of the risk of harm flowing from the asserted events. It rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.
15. As explained above, assessment risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.
16. The complaint raised by the applicant in his affirmation was a bare assertion without particulars or evidence in support. I do not find any reasonably arguable basis in the assertion to challenge the decision of the Board.
17. Even on his own account, the alleged past ill-treatment was of low intensity and frequency. It does not come near the level of severity required by law to constitute torture or CIDTP. There was no valid reason why his girlfriend’s family still wish to pursue him after so many years that he had not seen his girlfriend. He could also live with his uncle in New Delhi safely for quite some time before he left India. There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.
18. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately. It fairly accepted the primary facts asserted which are most favourable to him. There cannot be any criticism of its fairness and determination which is eminently reasonable.
19. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.
Disposition
20. For the reasons given, there is no reasonable prospect of success in the applicant’s intended application. I refuse to grant leave to apply for judicial review.
Dated 8 October 2020
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 8 October 2020
Narinder Singh
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 October 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8445/17/9/117/IN/1609
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1488/17 (Formerly RBCZ 1300/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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