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

HCAL 1772/2018

[2020] HKCFI 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1772 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 13 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 4 December 2019.

3.  Leave was granted to the applicant to amend Form 86 by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 5 September 2012 as a visitor and was allowed to stay until 22 September 2012. He overstayed and was arrested by police on 13 May 2013. He was referred to the Immigration Department on 14 May 2013. He lodged a non-refoulement claim on 5 July 2013.

5.  He claimed that if refouled, he would be harmed or killed by Gursahab Singh and other supporters of Shiromani Akali Dal Party (“SAD”) because he had a dispute with them who worked for his opponent bus company.

6.  The applicant and Gursahab were working as bus conductors in two different rival bus companies. Because of competition of the bus companies, they had fought together with other colleagues. There were two occasions they had fought against each other. The applicant suffered injuries. He reported to police. The police did not take any action as Gursahab was a supporter of SAD, the ruling party. The applicant then changed his job and became a watch salesman living in another place in order to avoid Gursahab. However, he was seen by Gursahab one day and was assaulted by Gursahab. He decided to leave India for Hong Kong. He was assigned to Hong Kong to attend a watch. He overstayed in Hong Kong without permission.

The Director’s Decisions

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

a.     risk of torture under Part VIIC 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”).

8.  By Notice of Decision dated 29 January 2016 and Notice of Further Decision dated 3 October 2017 (the “Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed as low [76]; that alternate avenues to seek justice was available to him [82] and internal relocation was an option open to him [83]. His claim under BOR 2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 21 June 2018.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.  The Board considered the applicant’s evidence and concluded that there was no reliable evidence that the applicant had a well-founded fear of ill-treatment that was of a sufficiently grave nature as to amount to persecution for Convention reason; state protection was available to the applicant [62] and the applicant was unable to be classified to be a refugee within the definition of the Convent [63].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 29 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said he was not satisfied with the Board’s Decision and that he wished to stay in Hong Kong until his problems in India had been solved. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  Those reasons he stated above would not assist him.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave to the applicant to apply for 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