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

HCAL 1784/2018

[2020] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1784 of 2018

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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). There is another Decision of the Board dated 30 March 2015, which the applicant did not apply for leave to take out an application for judicial review. But I have to take it into consideration as I shall explain in paragraph 9 below.

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 22 November 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 23 September 2014. He was denied entry by the Immigration Department. He lodged a non-refoulement claim.

5.  He claimed that if refouled, his life would be in danger because of a political dispute. The reasons that he left India for Hong Kong were that his father was a member of Aam Aadmi Party and Amrik Singh was a member of the rival party, Shiromani Akali Dal Party (“SAD”). Amrik asked his father and him to support SAD in an election. His father and he refused. Amrik sent his relatives to attack him with swords and hockey sticks and baseball bats in 2013, as a result of which he sustained injuries which took a month to recover. He reported the matter to police. The police did not take up the complaint because of Amrik’s influence. The police even detained him and attacked him in the detention cell. After SAD won the election, he was again harassed by Amrik’s relatives. Upon his parents’ advice, he came to Hong Kong.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC 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 19 November 2014 and by Notice of Further Decision dated 23 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [12]; that avenues for justice were available to him [15]; internal relocation was an option open to him [16] and that his evidence was inconsistent and his conduct was also inconsistent with one who was seeking asylum [17]. In the Director’s Further Decision, the Director found that he had failed to establish BOR 2 risk [6].

The Board’s Decisions

8.  The applicant had appealed to the Board against the Director’s Decision. He failed to attend the hearing at the scheduled time and his explanation was not accepted by the Board. Pursuant to section 15 of Schedule 1A of the Ordinance and paragraph 11.3 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board decided to deal with the appeal on paper without a hearing.

9.  By the Board’s Decision dated 30 March 2015, the Board rejected his appeal and confirmed the Director’s Decision. The applicant did not apply for leave to apply for judicial review of this Decision. He applied for leave to apply for judicial review of the Board’s Decision dated 26 July 2018 on BOR 2 risk only. However, since the facts of the Decision dated 30 March 2015 equally apply to the Board’s Decision, I shall take into consideration of the Board’s Decision dated 30 March 2015 in my deliberation of the applicant’s case. My analysis below covers both Decisions of the Board.

10.  The Board considered the applicant’s evidence and it accepted the Director’s findings. The Board accepted the Director’s treatment of the country of origin information in relation to the applicant’s case [39]; that generic evidence should not apply to the applicant’s case and on that basis found that his case failed to satisfy the elements in the definition of torture [40-51]; that his evidence in relation to BOR 3 risk was unreliable [57]; that state protection was available to the applicant [66]. The above references are found in the Board’s Decision dated 30 March 2015. His claim under BOR 2 risk was not established. See paragraph 24 of the Board’s Decision.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he did not say what errors the Board had committed in coming to its decision.

DISCUSSION

13.  The applicant appeared before me. I explained to him the reasons based upon which the Board did not grant him a hearing before it made its decision dated 30 March 2015. I asked him if he had any comments or complaint on the Board. He said that he had no comment and that he had no explanation for his absence on 3 March 2015.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

16.  I therefore refuse to grant leave to the applicant to apply for leave 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