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

HCAL 1508/2018

[2022] HKCFI 489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1508 of 2018

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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with 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 sought to enter Hong Kong on 30 September 2014 but was refused permission to land.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that he would be harmed or killed by the supporters of Indian National Lok Dal Party (“INLD”) due to his support of the Congress Party (“CP”).

5.  According to the applicant, his family had been a supporter of CP and he also devoted his efforts in assisting CP during the 2009 election.  Because of his support for CP, he had arguments with members of INLD.  In September 2014, the applicant was pushed and slapped on the face by the INLD supporters.  He didn’t report to the police as his neighbours said that the police were corrupt. When they sought to resolve the matter by village arbitration, the INLD supporters did not show up.  Feared that they might hold a grudge and hurt him, the applicant fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of a Notice of Decision dated 14 November 2014 by the Director (“the Director’s First Decision”) described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

b.   Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 the Director’s First Decision, the Director refused his claim on the ground of Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [11]-[16]; that state protection was available to him [17] and that internal relocation was an option open to him [20]-[24].  In a Notice of Further Decision dated 19 January 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return to his home country.

The Board’s Decisions

8.  The applicant first appealed the Director’s First Decision to the Board.  On 25 February 2015, the Board conducted an oral hearing for the applicant’s appeal.  Having considered all the evidence, the Board dismissed the applicant’s appeal against the Director’s First Decision.  During the hearing, the applicant confirmed that, according to the country of origin information, INLD ceased to be the majority in his home village in 2014 [14].  The Board also found that the alleged injuries suffered by the applicant did not attain the minimum level of severity [18].  Further, none of the applicant’s evidence supported a conclusion that the police would not assist him if he reported the harassments from INLD members [22]-[26]. Thus, the Board considered that the core aspects of the applicant’s claim were not credible or reliable [29]-[31].  For these reasons, the Board rejected his claim on the grounds of Persecution risk, Torture risk and BOR3 risk in a decision dated 11 March 2015 [32]-[51] (“the Board’s First Decision”).

9.  Insofar as the applicant’s appeal against the Director’s Second Decision, the Board allowed the applicant’s late filing of the notice of appeal/petition as it was only late by two days and proceeded to consider the merits of the applicant’s BOR2 risk [8].  As the applicant failed to submit any additional evidence in support of his claim under BOR2 risk, in light of the Board’s First Decision, in a decision dated 26 July 2018, the Board also rejected his claim on BOR2 risk and dismissed his appeal against the Director’s Second Decision (“the Board’s Second Decision”).

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 31 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he enclosed the documents from the Immigration Department and the Board’s Second Decision without specifying any ground in support of his application.

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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.  The Court will bear in mind that the Board’s Decision 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.  This application is seeking leave to apply for judicial review of the Board’s Second Decision. The Board’s First Decision has become final as he had not appealed against it. The Board had considered the Director’s First Decision and the Director’s Second Decision before making its decision. The applicant has raised no valid ground to challenge the Board’s Second 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.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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