RAGHUVEER CHAND v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 204/2019

[2020] HKCFI 2298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 204 OF 2019

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.  The applicant, born in 1994, is a national of India.  He arrived in Hong Kong on 1 September 2014 and was permitted to remain until 15 September 2014.  He surrendered to the Immigration Department on 28 October 2014 and lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [9-16] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the family of his girlfriend.  He and his girlfriend belong to different castes and social status.  Her family objected to their relationship.  In April 2014, her father came to his house carrying weapons such as swords and threatened to kill him if he did not stop the relationship with his girlfriend.  He left his village for another place where he was trained as a cook for two months.  After the training, he went to reside with her aunt in another area until he came to Hong Kong.

The Director’s decision

4.  By a notice of decision dated 8 September 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.  The applicant attended a hearing before the Board on 19 November 2018.

6.  By a decision dated 16 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.  The Board gave detailed reasons for rejecting the applicant’s claimat para [25-42] of its decision.  In a nutshell, the Board found his evidence vague and inconsistent.  He was unable to provide the most basic details of the claim and even failed to recall the name of his girlfriend; his evidence was also inconsistent with his claims [26-27].

8.  Having considered the totality of the evidence before it, the Board concluded that his claims to have been involved in a relationship with a girl in India and to fear violence at the hands of the girl’s family are simply not credible [30].  It did not accept that there is a real risk that he would suffer serious harm of anyone, if refouled [33].

Application for leave to apply for judicial review

9.  The applicant filed a Form 86 on 22 January 2019 for leave to apply for judicial review of the decision of the Board.  In the Form 86, the applicant did not set out any ground for judicial review.  In his affirmation in support, he simply attached the decision of the Board.  He did not request an oral hearing. The application is therefore considered on the papers. 

10.  By a letter dated 16 July 2020, the court invited the applicant to submit information including any submissions that he would like to make.  Since then, he has not made any response or submission to the court.

Discussion

11.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.  When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on the latter’s decision.

13.  In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts based on his inability to provide the most basic details of the claim and inconsistencies in his claims.  On the factual findings, there cannot be any basis for the applicant’s fear.

14.  As mentioned above, assessment of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

15.  The applicant did not provide any grounds or evidence to demonstrate why the Board was unfair or unreasonable in the public law sense.

16.  The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

17.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

18.  For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

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