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

HCAL 2244/2018

[2022] HKCFI 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2244 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 19 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s 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”), his application 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 entered Hong Kong on 11 September 2015 as a visitor and was permitted to stay until 25 September 2015. However, he did not depart and had overstayed since 26 September 2015.  On 14 June 2016, he surrendered to the Immigration Department.  On 26 August 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Bachatar Singh (“BS”) and Virsa Singh (“VS”) due to a land dispute.

5.  According to the applicant, he inherited two pieces of land from his father.  The two pieces of land were adjacent to that of VS.  In April 2015, VS offered to buy the applicant’s land.  Met with a refusal from the applicant, VS threatened to take the subject land by force.  In May 2015, VS and BS broke into the applicant’s house and threatened him to give up the land.  Later that day, they attacked the applicant on his farmland with hockey sticks, baseball bats and swords.  The applicant sustained injuries and received medical treatments.  In July 2015, the applicant went to his mother-in-law’s house to avoid BS and VS.  In August 2015, the applicant reported the attack to the police.  Nevertheless, the day after his report, he received a phone call of threat from VS.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 31 January 2018 (the “Director’s Decision”) and paragraph 11 of the Board’s Decision described below.  

The Director’s Decision

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

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

(2)  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  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

(4)  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 refused the applicant’s claim.  The Director rejected that the applicant would face any real risk of harm from BS or VS if refouled because (i) on the evidence, BS and VS had shown no real intention to serious harm or kill him [15]-[16]; (ii) it was unreasonable why VS did not target the applicant’s brothers whose lands were also adjunct to that of VS [17]; (iii) the applicant’s assertion that BS and VS would kill him to seize the land was speculative [18]; (iv) BS and VS were not powerful enough to locate the applicant all over India [19]-[20]; (v) state protection was available to the applicant [21]-[23] and (vi) internal relocation was a viable option [24]-[25]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 3 September 2018 for his appeal, during which the applicant answered the Board’s inquiries with the assistance of an interpreter [28].

9.  After considering the evidence, the Board made the following findings. The Board considered the applicant’s evidence on how he inherited the land from his father problematic [31].  It also rejected the applicant’s new claim that BS and VS targeted him due to his outspoken dissent against their party [32]. It observed that the applicant’s evidence on the attacks was also inconsistent [34].  In light of these inconsistencies without cogent explanations, the Board refused to accept the material aspects of the applicant’s claim [35]. 

10.  As a result, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 15 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said he was not satisfied with the decision of the Appeal Board.

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 CA, §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.

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 applicant has not raised any valid ground to challenge the Board’s Decision.

17.  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.

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

CONCLUSION

19.  I therefore refuse to grant leave for 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