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

HCAL 2691/2018

[2021] HKCFI 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2691 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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  It is apparent that the applicant’s application is for leave to apply for judicial review of the Decisions respectively dated 24 August 2016 and 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision” and “the Board’s Further Decision” respectively)) although the applicant has only put down the Board’s Decision dated 24 August 2018 in Form 86. First, the date is wrong. The Board’s Decision in 2018 should be 31 August 2018. Second, the Board had to rely upon the facts of the Director’s first Decision. On the face of it, the applicant is late to file his application for the Board’s first Decision dated 24 August 2016. However, the Director of Immigration (“the Director”) wrote to the applicant on 25 October 2016, inviting him to provide additional facts in support of his claim under BOR 2 risk. This will extend time for the applicant to appeal against the Director’s first Decision dated 24 August 2016 to the time for judicial review of the Board’s Decision on BOR 2 risk. This is only rational because the Board has to consider the facts in the Director’s Decision and the applicant’s appeal will succeed on any of the risks as raised by the applicant. All of the risks relied upon the same set of facts raised by the applicant.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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”), the interested party. It is further amended that the relief the applicant seeks is the Board’s Decision and the Board’s Further Decision.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 26 January 2014 where he was denied permission to land whereupon he lodged his non-refoulement claim with the Immigration Department.

5.  He claimed that if refouled, he would be harmed or killed by his uncle, Gulzaar and his people because of a dispute on land and different political stance. The piece of land in question was inherited from his grandfather to his father. From the period between 2003 to 2008, Gulzaar demanded transfer of the piece of land to him. In the heat of the argument, his father passed away because of heart stroke. Gulzaar turned to him direct. He had lived elsewhere to avoid his uncle. However, his uncle continued to bring his people to harass him for the piece of land. He came with other people with weapons including guns. They assaulted him and even shot at him. He was not injured, but he managed to escape. He had reported the case to police, but he was detained and assaulted by police. He suspected that the police had been bribed by his uncle. In January 2014, he went to Thailand and then to Hong Kong. Details of the incidents are set out in paragraph 6 of 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 Notice of Decision dated 28 November 2014 (“the Director’s first Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Raj upon his return to India was assessed to be low [12]; that state protection was available to him [21] and that internal relocation was an option open to him [33].

8.  By Notice of Further Decision dated 25 October 2016 (“the Director’s Further Decision”), the Director found that he had failed to establish his case under BOR 2 risk [6].

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s first Decision. The date of hearing is 9 March 2016.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant had failed to give coherent account of his case and there was no reasonable likelihood that he might be subjected to torture if he returned to India [32].

(2)  For the same reason, the Board rejected his claim on Torture risk [32]; BOR 3 risk [37] and Persecution risk [43].

11.  The applicant appeared before the Board on 1 June 2018 for his appeal against the Director’s Further Decision. By the Board’s Further Decision, the Board, having considered the evidence again and for the same reason aforesaid, rejected his claim on BOR 2 risk [45].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 27 November 2018 (as amended) for leave to apply for judicial review of the Board’s Decision and the Board’s Further Decision.

13.  In his affirmations in support of his application, he said that he was not satisfied with the Board’s decision.

DISCUSSION

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

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.  His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

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

18.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  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