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

HCAL 748/2019

[2022] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 748 of 2019

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 14 March 2019 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”), 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”) is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong on 27 July 2013 as a visitor and was permitted to stay until 10 August 2013.  However, he did not depart and had overstayed.  On 12 September 2015, he was arrested and, two days later, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Jail Singh (“JS”) due to a land dispute.

5.  According to the applicant, he inherited the family land from his mother in 2011.  Since 2012, JS had been approaching the applicant for the sale of the land for access to JS’s building.  He offered a very low price for the land and the applicant rejected his offer.  It was the applicant’s knowledge that JS was politically influential.  The applicant further claimed that, in mid-2012, he had encountered three attacks and threats from JS and JS’s associates due to his refusal to sell the land.  In the first and last attacks, he suffered injuries and received medical treatments.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 7 of the Director’s Decision and paragraphs 8 to 22 of the Board’s Decision as 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 VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   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”);

(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 a Notice of Decision dated 26 July 2018 (“the Director’s Decision”), the Director refused his claim.  The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low because (i) the low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[19]; (ii) state protection was available to him [20]-[27]; and (iii) internal relocation was an option open to him [28]-[33]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 15 February 2019 for his appeal.  The applicant gave evidence before the Board with the assistance of an interpreter [24]. 

9.  Before the Board, the applicant gave contradictory evidence on two material aspects of his claim, namely, (i) when his father died, and (ii) when and how he inherited the land [26]-[27].  Upon inquiries from the Board, the applicant claimed that he was unable to recall the details.  The Board informed the applicant that such inability to recall important aspects of his claim might damage his credibility and advised him to reconsider his decision not to provide further evidence.  The applicant however confirmed to the Board that he would not wish to provide further evidence [28]. 

10.  The Board observed that the applicant was unable to recall crucial aspects of his claims, which was a strong indication that his claim was fabricated [31].  It also noted that the applicant refused to continue answering the questions after he failed to clarify certain basic questions of his claim [32].  Thus, the Board was not satisfied that the applicant established any claimed fear upon refoulement [33].  For these reasons, 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 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant enclosed the documents of the Immigration Department, the Board’s Decision and the hearing bundle without setting out any specific ground in support of his application.

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. The Board was entitled to reach its decisions as it had done under the circumstances.

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 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