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HCAL 2333/2018
[2022] HKCFI 1082
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2333 of 2018
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Jagjeet Singh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 4 January 2018, which is the Decision of the Director of Immigration (the “Director”). Since the Director’s Decision had been dealt with by the Decision dated 19 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), the Director’s Decision is not amenable to judicial review.[1] The applicant’s Form 86 will be rectified upon the Court’s own motion below.
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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, the Director of Immigration (“the Director”) is the interested party and the decision in respect of which relief is sought is the Board’s Decision.
The applicant
4. The applicant is a national of India. He entered Hong Kong illegally on 17 January 2016 and was arrested by police. By written signification dated 19 January 2016, he lodged non-refoulement claim with the Immigration Department. He claimed that if refouled, he would be harmed or killed by his brother, Kuldeep, because of the dispute on his parents’ properties.
5. According to the applicant, his brother wanted to kill him because he wanted to inherit their parents’ properties, fearing that the parents might pass the properties to the applicant. On two occasions, his brother had attacked him and the family with 8-10 people. The first occasion was in June 2014 where he took 8-10 people back home. He seemed to be drunk himself. He pushed the parents and the applicant around. No serious injuries were caused. The second occasion was in July 2014 when he brought 8-10 people armed with knives and swords to the family. The door was locked and the applicant managed to escape. He had lived in his friend’s premises for a few months without any incident. His family member told him that his brother was still looking for him and his brother would kill him because he would then be the only son to inherit the parents’ properties. Upon his friend’s advice, he came to Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision 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. 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”);
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 a Notice of Decision dated 4 January 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that there was no substantial ground for believing that he would be subjected to the alleged risks for the reasons that the possibility of being targeted was low [13-14] and there was no indication that his brother was a powerful and influential figure [15]; that state protection was available to him [17-19] and that internal relocation was an option open to him [20-22].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 13 June 2018, the Board conducted an oral hearing for his appeal.
9. The Board enquired the material aspects of the applicant’s claim and found that he was a dishonest witness [38-39] as it was not convinced that he had suffered any physical or mental pain and sufferings as he alleged and he was not a genuine claimant; that there was no evidence that state protection would not be available to him [52] and internal relocation was also an option open to him [71-74].
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 24 October 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, the applicant said the Board’s Decision disregarded the danger and threats he faced in his country.
DISCUSSION
12. 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).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. The ground above is only his personal opinion without any evidence in support and it is not valid reason to challenge the Board’s Decision.
16. 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.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 19th day of April 2022
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(Chasel MAN)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 19/4/2022
Jagjeet Singh
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/4/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9923/18/1/196/IN1865
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3223/17 (formerly RBCZ 10527/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018)
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
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