CHARANJIT BAINS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 257/2024

[2024] HKCFI 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 257 of 2024

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.  In a previous Form CALL-1 [2020] HKCFI 1277, this Court granted leave to the applicant to apply for judicial review of the Board’s Decision dated 7 June 2018, which dismissed his appeal against the Director’s decision dated 29 December 2017 (“the Director’s Decision”), rejecting his claim for non-refoulement on Torture risk, BOR 3 risk and Persecution risk.  The reason for granting leave to the applicant is the Board had refused to extend time for the applicant to file his notice of appeal without considering the merits of his case.

2.  The Department of Justice representing the Director of Immigration (“the Director”) consented to remitting the case to the Board to be re-assessed by another adjudicator.  This was done and another adjudicator conducted another hearing on 28 December 2022 attended by the applicant.  Having considered the evidence, the adjudicator dismissed his appeal and he had compiled a Decision dated 13 January 2023.

3.  The applicant applied for leave to apply for judicial review of the Decision dated 13 January 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“the Board’s Decision”).

4.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

5.  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

6.  The applicant is an Indian national.  He came to Hong Kong on 21 August 2005 as a visitor and was permitted to stay as such until 23 August 2005.  He overstayed and was arrested on 24 May 2006.  He was referred to the Immigration Department for investigation.  On 27 May 2006, he lodged his non-refoulement claim.  He was released on recognizance.  During the period of 15 July 2006 and November 2017, he stayed in Hong Kong and committed 8 counts of indecent assaults and one count of robbery.  He was sentenced to imprisonment.

7.  He claimed that if refouled, he would be harmed or killed by Mr. Gurdev Singh because he was unable repay the loan to him.

8.  Briefly stated, in 2005, the applicant borrowed 300,000 Indian Rupees from Gurdev, who was a retired military officer, for his clothes business.  He came to Hong Kong for his business.  He lost his money in Hong Kong and therefore he was unable to pay the interest or settle the loan.  Gurdev demanded repayment.  He went to the applicant’s family and threatened that if the applicant did not pay back the money, they would kill the applicant.  Despite the threat, his family did not report to police.  Fearing that Gurdev might kill him if he returned to India, he remained in Hong Kong without the consent of the Director.  Details of his story are set out in paragraph 9 of the Director’s Notice of Decision dated 29 December 2017 (“the Director’s Decision”).

The Director’s Decision

9.  As the applicant had made a Torture claim and his application was rejected, 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”); 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”).

10.  By the Director’s Decision, 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 alleged was low [21]-[23]; that state protection was available to him [24]-[27] and internal relocation was an option open to him [28]-[31].  His claim failed under BOR 3 [32]-[34]; BOR2 risk [35]-[36] and Persecution risk [37]-[40].

The Board’s Decision

11.  This time, the Board extended time for the applicant to file his notice of appeal and it had called upon the applicant to appear before it for a hearing.  The applicant appeared before the Board and answered questions from the Board.

12.  Having considered his evidence, highlighting the inconsistencies of the applicant’s evidence, the Board came to the following conclusion:

“51. I have no doubt whatever that the Petitioner is not a reliable witness. His claim [sic] risks, in material aspects are based on information/evidence which is not credible. Hence I reject such information/evidence, and his petition must fail.

60. He is an able-adult of 60 years old with 10 years working experience as a wheat wholesaler. It would not be unduly harsh for him to relocate to other areas in India, in order to avoid the risk of harm, and to earn a living over there.

63. … the Petitioner does not face a personal and real risk of being subject to BOR 2 risk, upon his return to India. …

68. … he does not face a genuine and substantial risk of being subjected to BOR 3 ill-treatment upon his return to India. Hence his petition on this ground cannot succeed.

71. His problems with Gurdev is purely a private dispute. It has nothing to do with race, religion, nationality, membership of a particular social group or political opinion. Hence it does not fall within the ambit of “persecution risk”.”

13.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.  The applicant has filed Form 86 dated 1 February 2024 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant submitted:

(1)   the Director had not given sufficient weight to his argument before making his Decision;

(2)   the adjudicator failed to make sufficient enquiry before finalizing the determination; and

(3)   the grounds of this appeal [judicial review] are that the gravity of his circumstances has not been weighted or realized by the Board.

DISCUSSION

16.  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).

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

18.  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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

20.  The grounds raised by the applicant in paragraph 15 do not assist his application.  Ground (1) relates to the Director and is not applicable to the Board.  Ground (2) and Ground (3) are his opinions without any evidence in support.  They are not valid reasons to challenge the Board’s Decision.

21.  There is no reason that the Court should interfere with the Board’s finding of the facts.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for 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