JOGINDER PAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 192/2019

[2022] HKCFI 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 192 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 8 January 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 illegally on 27 October 2015 and was arrested by police on the next day.  On 2 November 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncle.

5.     According to the applicant, his father and parental uncle co-owned a bakery.  In the end of 2014, his parental uncle attempted to exclude the applicant’s family from the business.  In February 2015, the applicant’s uncle was drunk and attacked the applicant with an iron rod.  He sustained an open wound on his forehead and received stitches from a private clinic.  The applicant’s subsequent report to the police was of no avail as his uncle was influential and powerful.  Thereafter, the applicant and his uncle occasionally had small fights and verbal arguments but no significant injuries were caused.  Fearful that the fights would escalate, the applicant eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 30 August 2017 by the Director (“the Director’s Decision”) and paragraphs 8 to 14 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:

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

b.     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”);

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”).

7.     By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director refused to believe that the claimed risk of harm was real and foreseeable because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection was available to him [16]-[17]; and (iii) internal relocation was also an option [18].    

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 19 October 2018 for his appeal, during which the applicant answered inquiries from the Board.

9.     Before the Board, among other things, the applicant stated that his parental uncle and his father still shared the same bakery and that their families continued to live under the same roof.  He confirmed that the incident in 2014 was the only time that his uncle hit him [16]-[18]. 

10.     The Board observed that the applicant’s evidence was vague and inherently contradictory.  It also noted that, on the applicant’s own evidence, his father and uncle continued to operate the business together and live in the same house.  Such fact greatly undermined his claimed fear of harm from his uncle [25]-[29].  As a result, the Board refused to accept that there was a serious ongoing dispute with his uncle about the ownership of the business and found that the applicant had exaggerated the claimed dispute.  There was therefore no basis for the applicant’s claim [31].  For this reason, 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 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.     In his affirmation in support of his application, he reiterated that his uncle would kill him, the authority in his country would not protect him and relocation is not possible for him.

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 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