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

HCAL 1736/2019 [2024] HKCFI 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1736 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 14 June 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.  However, he was absent at the hearing on 27 May 2024 without prior notice to the Court.  I shall deal with his application on paper.

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, aged 33, is an Indian.  He arrived in Hong Kong on 27 November 2013 and made a torture claim on the same day.  On 2 December 2013, the applicant’s torture claim was treated as withdrawn in response to his letter of 29 November 2013.  On 6 June 2014 and 2 September 2014, the applicant was arrested for possession of a dangerous drug.  He jumped bail and was re-arrested by the police on 30 November 2015.  On 20 January 2016, the applicant was sentenced to imprisonment of 9 months and 2 weeks.

5.  On 13 December 2016, the applicant lodged his non-refoulement claim.  However, his claim was deemed withdrawn as he failed to return the required form.  On 23 January 2019, the applicant applied to reopen his non-refoulement claim, explaining that he failed to return the required form due to circumstances beyond his control.  Upon consideration, the applicant’s non-refoulement claim was re-opened on 28 March 2019.  The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the Shiromani Akali Dal Party (“SAD”) because of his political involvement in Indian National Congress Party (“INC”).  

6.  According to the applicant, he became a supporter of INC since around 2005 or 2006.  Between 2006 and 2010, the applicant received constant verbal threats from SAD members, warning him to stop campaigning for INC.  In around 2010 or 2011, SAD became the ruling party at the applicant’s locality and their members frequently intervened the activities of INC. One day in around 2012, around 20 - 25 SAD members intervened in an INC rally by firing shots in the air and towards INC members.  During the chaos, the applicant was hit by a sword on the top above his forehead and on the left side of his head. He managed to escape and went to a clinic to treat his wounds.  The applicant heard that 5 - 7 INC supporters were injured and were admitted to hospital for treatment.  He did not report the incident to the police because he believed that they would side with the ruling party, i.e. SAD.

7.  At the end of 2012, while the applicant was not at home, some SAD members came and asked for him.  His parents considered the applicant unsafe to remain at his hometown.  On the same day, he relocated to his maternal aunt’s home.  About 2 - 3 days later, his aunt told him that some police officers came to look for him when he was away.  The applicant believed that a case was filed against him with the police and he was no longer safe at his aunt’s home.  He therefore left for New Delhi.  Thereafter, for about a year, the applicant moved around between his hometown, his aunt’s home and New Delhi.

8.  The applicant maintained contact with his parents while he was relocating between different places.  They told him that SAD members visited his home frequently and asked for his whereabouts.  Eventually, the applicant departed India and arrived in Hong Kong on 27 November 2013.   

9.  The applicant was of the view that the police would not render him assistance because SAD had wide connections with the police.  He also considered internal relocation not viable because he believed that he would be easily found due to the wide network of SAD in India.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 April 2019 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

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

c.  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”); and

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

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low frequency and extent of past ill-treatment from SAD members indicated that the perceived risk of harm was not as imminent and substantial as claimed [17] - [18]; (ii) state protection would be available to him upon his return [20] - [26]; (iii) internal relocation would be viable [19], [27] - [34] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [35] - [41], Persecution risk [42] - [48] or Torture risk [49] - [52].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  By way of letters dated 29 April 2019 and 9 May 2019, the applicant indicated that he did not require an oral hearing because all the information about his case was available in the case bundle.  The appeal was therefore proceeded without a hearing [2].  

14.  The Board considered that the applicant’s behaviour of frequently returning to his hometown and his aunt’s home within the one-year period after he relocated to New Delhi was inconsistent with that of a person genuinely in fear [25].  His claim that SAD members resumed visiting his home, asking for his whereabouts in 2019 was also not credible [28].  In any event, given that the applicant had stopped participating in INC activities, the Board saw no reason that SAD members would materialise their threats [34] - [35].  Furthermore, state protection and internal relocation were also available to him according to the country of origin information [36] - [43].

15.  Based on the findings above, the Board concluded that the applicant’s claim failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [44] - [61].  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

16.  The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, he has raised the ground below:

(1)  The Board’s Decision is unreasonable in that it did not take into account of the right to life and there was insufficient time for him to arrange relevant evidence.

(2)  The Director had failed to appreciate state acquiescence.

(3)  The Director had failed to give sufficient weight to the COIs on state protection to his favour.

(4)  The Director’s Decision is unfair and Wednesbury unreasonable.

DISCUSSION

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

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

20.  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.”

21.  At the request of the applicant, the Board considered his claim without a hearing.  The Board had considered his evidence, and for the reasons given above, the Board did not accept his evidence in support of his claim.

22.  The grounds in paragraph 17 do not assist his application.  They are his bare assertions or opinions without any evidence in support.  The applicant has not stated how much time he requires for his preparation and the reason why he did not raise this issue with the Board.  They are not valid reasons to challenge the Board’s Decision[1].

23.  The applicant has failed to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

24.  I refuse to grant leave to 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