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

HCAL 1158/2019

[2023] HKCFI 2920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1158 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 present in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 22 March 2023.

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

The applicant

4.  The applicant is a national of India. He entered Hong Kong as a visitor on 20 May 2018 and was permitted to stay until 3 June 2018. He did not depart and had overstayed since 4 June 2018. On 19 September 2018, he was arrested by the Immigration Department for overstaying. On 18 November 2018, 26 November 2018, and 13 December 2018 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousins.

5.  In short, the applicant claimed that his cousins were members of Akali Dal Party and they were also connected with the Member of Legislative Assembly. In 2016, his cousins intended to purchase the applicant’s family farmland he inherited from his father. The applicant refused. Since then, the cousins had been threatening him. Later, the applicant sold one piece of the land. Upon knowing the sale, the cousins were irritated and assaulted the applicant three times. In May 2017, they also flooded the applicant’s farmland and beat him. His report to the police was of no avail. Out of fear, the applicant escaped and eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 27 February 2019 by the Director (the “Director’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. In elaboration, the Director found that (i) the perceived risk of harm from his cousins was unlikely to materialize [12]-[14]; (ii) state protection would be available to him [15]-[18]; and (iii) internal relocation was a viable option [19]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. He applied to the Board for dealing with his appeal on the papers [4]. As a result, the Board proceeded to consider all the available information on paper.

9.  Having considered the evidence, the Board found that none of the alleged enemies were state agent and no hostility was instigated or authorized by the Indian government. Nor was the applicant ever adversely targeted by the government [7]-[9]. Meanwhile, none of the alleged injuries sustained by the applicant attained the minimum level of severity [10]-[13]. In any event, the country of origin information denoted that internal relocation was a viable option for the applicant [16]-[19]. In passing, the Board also noted that the applicant’s story contained problematic issues which were unexplained [31]-[34].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 on 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  His grounds in support of his application are insofar as the Board is concerned:

a.  the Board’s Decision is unreasonable because it did not pay attention to the right to life and he was not given sufficient time to arrange evidence;

b.  the Board failed to take into account of state acquiescence as he was tortured; and

c.  the Board failed to give proper weight to the COI that support his claim.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision and he had asked the Board to deal with his appeal on paper. He asked the Court to give him time to provide evidence.

15.  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.”

16.  The Board, for the reasons given in paragraph 9, had rejected his evidence. The Board further found that state protection would be available to him and internal relocation is an option open to him. Those grounds in paragraph 12 do not assist him. Grounds (1) and (3) are his opinions without any evidence in support. Ground (2) is not true as the Board had taken this issue into account. See paragraph 9.

17.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.  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