BHAGAT VISHAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1998/2018

[2021] HKCFI 3487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1998 of 2018

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 23 August 2018 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”), the matter is dealt with 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 citizen of India.  He entered Hong Kong as a visitor on 28 October 2014 but overstayed.  On 6 November 2014, he surrendered to the Immigration Department. On 27 January 2015, he lodged a non-refoulement claim.  In the ensuing years, he committed several criminal offences and was sentenced to imprisonments. 

5.     The applicant claimed that if refouled, he would be harmed or killed by his parental uncle, Meela Singh (“MS”), MS’s family members and relatives over a land dispute.   According to the applicant, MS and his family had dispute over a building passed down from his grandfather.  MS refused to share the building and the rents collected with the applicant’s father.  The applicant’s father went to Panchayat of Village Dablehar for a determination of the dispute.  However, the Panchayat was unable to resolve the dispute and it was taken to the court.  In around July 2013, the parties’ discussion became heated.  MS and the in-laws attacked the applicant and his father.  Both of them suffered injuries.  Shortly after, the attackers were charged.  However, in a subsequent meeting with MS, the applicant’s father indicated that he would transfer the land to the applicant.  MS responded with a death threat to the applicant.  Out of fear, the applicant decided to escape to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 9-32 of the Board’s Decision.

The Director’s Decision

6.     The Director considered his application 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 Notice of Decision dated 13 April 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by MS and his family upon refoulement was assessed to be low [11]-[15]; that state protection was available to him [16]-[20] and that internal relocation was an option open to him [21].

The Board’s Decision

8.     The applicant appealed against the Director’s Decision.  On 14 August 2018, he appeared before the Board and answered inquiries from the Board.

9.     By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board evaluated the applicant’s evidence against his oral testimony, and found that there were material facts and information provided by the applicant to be implausible and unreliable.  For example, the applicant gave contradictory evidence as to the advice of Panchayat for not reporting the matter to the police while the Panchayat had advised them to bring the dispute to court; the police had charged the attackers, which in a sense protected them or deterred MS; the applicant, upon receiving the death threats, waited for 3 to 4 months before fleeing to Hong Kong, which was inconsistent with someone who was in fear of safety; there was no evidence that MS could easily locate him or would use resources to locate him[46].  The above inconsistencies greatly undermined the applicant’s credibility and the Board refused to accept that the applicant had suffered any physical or mental pain as alleged.  It also rejected the allegation that MS was still looking for him.  Overall, the Board refused to accept him as a genuine witness [47].  Even on the applicant’s own evidence, his alleged injuries did not amount to “severe pain” [52].  Further, there was no evidence of state involvement or acquiescence [53]-[62].  As a result, the Board rejected his claim on all applicable grounds [63]-[78].  In any event, internal relocation was available to the applicant [79]-[82].  Thus, the Board dismissed his appeal.  

Application for leave to apply for judicial review

10.     The applicant filed Form 86 dated 20 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In his affirmation in support of his application, he did not set out any specific grounds in support of his application.

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 Decision 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.     He has submitted no valid ground to assist his application.  The Board has reject his evidence on the facts of his claim.  He therefore has no factual basis in support of his claim.

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.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.     I therefore refuse to grant leave for the applicant to apply for his 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