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

HCAL 1745/2018

[2020] HKCFI 1114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1745 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 Decisions respectively dated 5 December 2016 and 23 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

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 18 September 2019.

3.  Leave was granted to the applicant to amend Form 86 and add the Board’s Decision dated 5 December 2016 for his relief as well. My reasons for allowing the amendment are these.

a.     In the Director’s letter dated 19 January 2017 inviting the applicant to submit additional facts in support of his non-refoulement claim, the Director had stated clearly that he would like to consider all applicable grounds and the applicant would be duly notified by a further written decision on any other applicable grounds, taking into account any new facts submitted. This shows that his Decision dated 11 December 2014 was not a final decision. It had not taken into account BOR2 risk. The final Decision should be after he had considered BOR risk 2.

b.     Time for taking out the application for leave to apply for judicial review under Order 53, rule 3 of the Rules of the High Court should therefore be extended to the time when the Director had made the final decision. He only made one decision, that is, whether he should accept the applicant’s non-refoulement claim under all of the risks the applicant claimed.

c.     For better case management, this decision will cover the applicant’s non-refoulement claim on all applicable grounds. This would obviate the possibility that the applicant might take out another application for time extension for judicial review of the Board’s Decision dated 5 December 2016. This Court cannot consider BOR 2 risk without also taking into consideration the facts and merits in the Board’s Decision dated 5 December 2016.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 29 January 2014. At the airport, he submitted two written representations respectively dated 29 January 2014 and 30 January 2014 for non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by six or seven Negro Terrorists because of his political dispute with them at his village in India.

6.  He left India because of the following incidents.

a.     He switched allegiance from Akali Dal Party (“ADP”) to the Congress Party because the head of the village council Mr. Gurinder Singh refused to assist him to solve a traffic collision, as a result of which, he had to pay compensation to the other vehicle’s owner. He had to borrow money from a money-lender with his father’s land as pledge. He failed to pay and his father lost his land.

b.     At the 2013 election, he had a fight with Gurinder’s son at the polling station. He was attacked by 4 or 5 ADP members. He suffered injuries to his legs, back and right arm. The police refused to take up the complaint.

c.     He met an ADP member, who told him that senior members of ADP wanted him to Adie because they had lost a lot of votes.

d.     There were intruders into his house. He learned that they were told to target him.

e.     On 24 July 2013, whilst he was staying in his aunt’s home, he saw five or six men alight from a vehicle. They fired three shots at him. He escaped. He felt unsafe in India.

The Director’s Decisions

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

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

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”); and

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”).

8.  By Notice of Decision dated 11 December 2014 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

9.  After the applicant had appealed to the Torture Claims Appeal Board on the Director’s Decision, the Director by a letter dated 3 January 2017, invited the applicant to submit additional facts in support of all his claims including 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”).

10.  By Notice of Further Decision dated 19 January 2017 (“the Director’s Further Decision”), the Director rejected his claim, including BOR 2 risk, for the reason that his claim was not substantiated.

The Board’s Decisions

11.  The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision. He attended a hearing before the Adjudicator on 10 July 2015 and 27 August 2015 respectively for his appeal against the Director’s Decision. There was a hearing on 16 July 2018 for his appeal against the Director’s Further Decision.

12.  By Decision dated 5 December 2016 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

13.  The Board considered the applicant’s evidence. It came to the conclusions below.

a.     There were discrepancies and inconsistences in the applicant’s evidence and due to the implausibility and dubious nature of his evidence, the Board found his claim unreliable and unacceptable [30].

b.     State protection was available to the applicant [64].

c.     The applicant could live and work in other cities in India such as Mumbai or New Delhi [67].

d.     The Board was not satisfied that the applicant faced a real risk of torture, BOR 3 or Persecution risk if refouled to India [68].

14.  By the Board’s Further Decision dated 23 August 2018, the Board refused the applicant’s appeal against the Director’s Further Decision on the grounds that his evidence in support of his claim under BOR 2 risk was unconvincing and implausible and his claims were therefore rejected as they were exaggerated, inconsistent and unbelievable [29]. There was simply insufficient evidence in support of BOR 2 risk in his case [30].

Application for leave to apply for judicial review

15.  The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Decisions.

16.  In his affirmation in support of this application, he said that his life remained in danger if he returned to India.

DISCUSSION

17.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decisions to him. His friend had explained the Board’s Decisions to him.

18.  It is obvious that the Board rejected his evidence on the facts of his claim. Therefore, he has no factual basis for his claim.

19.  I put the Board’s findings above to the applicant and asked him if he had any comments on them. He said that he had no comments.

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.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42held that the Board’s decision is final, subject to judicial review. However, there is no evidence to show that the Board erred in the finding of the facts or in the application of the laws to the case.

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

CONCLUSION

23.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the 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