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

HCAL 2741/2018

[2021] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2741 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 29 November 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”), I shall 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 and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is an Indian national.  He came to Hong Kong on 30 June 2014 as a visitor.  He overstayed and was arrested by police on 6 January 2016.  He lodged a non-refoulement claim with the Immigration Department on 8 January 2016.

5.  He claimed that if refouled, he would be harmed or killed by the sarpanch (village head) of his village named Kulwant Singh Handa (“KS”) because he refused to sell his land to him at a price lower than the market price.  His piece of land was adjacent to KS’s land.  KS wanted to extend his land by obtaining the applicant’s land as well.  He refused KS’s offer.  KS brought some people to attack him, threatening to kill him if he still refused to sell his land to him.  He had attempted to report the matter to police, but the police refused to make investigation.  He finally came to Hong Kong through Thailand in June 2014.  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 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 22 March 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 harm or being killed if he returned to India was assessed to be low [10]; that there was no evidence that the state was involved [16]; that state protection was available to him [17] and that internal relocation was an option open to him [27].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 16 October 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board accepted that there was a land dispute between the applicant and KS and KS had threatened to kill him.  However, there was no credible evidence that KS took any steps to carry out the threats. It therefore rejected the alleged attacks by KS on his father, his brothers and the applicant himself. [69-70]  The Board found that there were not substantial grounds for believing that, if refouled to India, the appellant would face a real risk of persecution [73] that his life would be at real risk within BOR 2 risk [76]; that he would face a real risk of being subjected to torture under BOR 3 risk [81]; that he would be subjected to the Torture risk [84 & 88].  The Board also found that internal relocation was an option open to him [97].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he wanted to complete the picture by attaching the Board’s Decision to his affirmation.  He did not specify any grounds in support of his application.

DISCUSSION

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

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  His affirmation in support of this application does not assist his application.

15.  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.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  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