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

HCAL 1523/2019

[2024] HKCFI 2336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1523 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  However, he was absent at the hearing on 10 July 2024 without prior notice to the Court.  I shall deal with his application on paper.

The applicant

3.  The applicant, aged 36, is an Indian.  He entered Hong Kong illegally on 17 August 2015 and he surrendered to the Immigration Department on 18 August 2015.  The applicant made a non-refoulement claim on 19 January 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his paternal uncle due to a land dispute.

4.  According to the applicant, he learnt from his father than his grandfather orally transferred his land to him when he was about 7 years old.  His paternal uncle became aware of such arrangement three years ago.  He requested the applicant to transfer the land to him orally and through phone messages.  Upon the applicant’s refusal, his paternal uncle started to attack him.  The first assault incident happened when his paternal uncle came together with 3-4 strangers to the applicant’s home and attacked him with bare hands.  The applicant suffered internal injuries to his brain with no bleeding.  He went to a hospital for treatment and stayed there for around 5 days.

5.  Upon discharge, the applicant moved to Mumbai, where he stayed for a week.  During this period, his paternal uncle frequently went to his father’s home to enquire his whereabouts and made threatening phone calls to him.  Subsequently, his paternal uncle and his underlings found and attacked him in Mumbai.  They assaulted him with bare hands and then hit him with an object on his head.  The applicant became unconscious as a result.  He was taken to hospital and was hospitalised for around 3 days.  Eventually, he departed India on 1 August 2015 and sneaked into Hong Kong on 17 August 2015.

6.  The applicant considered internal relocation not viable because his paternal uncle could hire people around to find him.  The applicant was also of the view that he could not seek protection from the police because they were corrupted.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 February 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

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

(b.)     risk of violation of the right to life under Article 2 of Section  of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found it unreasonable that his paternal uncle did not ask for a share of the land in the past years, but suddenly became vigorous in demanding the land from the applicant.  In any event, the low intensity and frequency of past ill-treatment from his paternal uncle and his followers indicated a small future risk of harm upon his return [12]-[13].

10.  Furthermore, the Director found that (i) state protection would be available to him [14]-[20]; (ii) internal relocation would be viable [21]-[25] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[40].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 16 November 2018, the Board conducted an oral hearing.

12.  During the hearing, the applicant claimed that he paid bribe to the police in order to get their assistance on his claims against his paternal uncle [51].  He also claimed that he lost conscious on both occasions after he had been physically assaulted by his paternal uncle [53]-[54].  Furthermore, the applicant claimed that he suffered from memory impairment due to head injury from the assaults.  Yet, no relevant medical documents could be provided [59].  There was also no documentation in relation to the claimed land ownership [66].

13.  The Board noted inconsistencies between the applicant’s oral evidence and his written claims regarding (i) whether he became unconscious and attended hospital after both attacks [60]-[61] and (ii) whether he reported the matter to the police and bribed them [63]-[64].

14.  The Board found the applicant to be very vague when asked to provide details about his claims and considered him not a credible witness.  Although he claimed to suffer from memory impairment due to a head injury, he provided no relevant medical documentation in support [76]-[78].  The Board did not accept that the applicant was assaulted due to a land dispute with his paternal uncle and that he suffered injuries.  It also rejected his claim that he could not recall details due to a head injury from the claimed assaults and did not accept that he bribed the police in order to get their assistance on his claims against his paternal uncle [79].

15.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [8]-[26], [28]-[33], [81]-[98].  In any event, state protection and internal relocation were also available to him according to the country of origin information [27], [67]-[70].

16.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application and his statement attached to Form 86, he has raised the ground summarized below.

(1)     He was not invited to make written submissions to the Board.

(2)     The Board had relied on the source of news, which is not officially recognized or it is simply hearsay.  It has also relied on outdated cases, resulting in its speculation that it is safe for him to return to his country.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  For those reasons given by the Board above, the Board rejected his evidence in support of his claim.

23.  As to his grounds raised in paragraph 18, supra, ground (1) fails because there is no obligation on the Board to advise him to make written submissions to the Board.  He has not told this Court what written submissions that he would have submitted to the Board in support of his appeal.  Ground (2) is only his opinion without any evidence in support.  Therefore, he has not been able to raise any valid reason to challenge the Board’s Decision.  There is no reason that this Court should interfere with the Board’s Decision.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.