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

HCAL 206/2019

[2022] HKCFI 1074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 206 of 2019

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 Director’s Decision dated 20 November 2018. There is no such Decision on the file. The Director’s Decision is dated 26 April 2018 (the “Director’s Decision”). Since he had appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”), he cannot apply for judicial review of the Director’s Decision as there is no exceptional circumstance in his case. He can only apply for leave to apply for judicial review of the Board’s Decision. See Re: Moshsin Ali, [2018] HKCA 549, §45.

2.  There is another procedural difficulty in this application. He filed Form 86 on 22 January 2019, which predates the Board’s Decision dated 8 February 2019 (the “Board’s Decision”).  This means when he filed Form 86, the Board’s Decision had not been issued by the Board.  It is clear that the applicant intended to apply for leave to apply for judicial review of the Board’s Decision, anticipating that the Board would uphold the Director’s Decision. I shall treat this as an irregularity under Order 2, rule 1(1) of the Rules of the High Court (“RHC”)[1], which will be rectified in paragraph 3 below.

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, the Director of Immigration (the “Director”) is the interested party, the Decision in respect of which relief is sought is the Board’s Decision and the date of Form 86 be amended to the next working day after 8 February 2019.

4.  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.

The applicant

5.  The applicant is a national of India.  He entered Hong Kong on 5 October 2016 as a visitor and was permitted to stay until 19 October 2016.  He did not depart and had overstayed since 20 October 2016.  On 1 November 2016, he surrendered to the Immigration Department.  By way of written representations dated 23 February 2017 and 24 February 2017 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Sukhdev Singh (“SS”). 

6.  According to the applicant, SS had been targeting his family land since his father inherited it from his grandfather.  The applicant became the target of SS because SS knew that the applicant’s father would transfer the land to him and his brother.  In 2014, SS and six to eight men attacked the applicant with hockey sticks.  The applicant suffered injuries and received medical treatments.  In October 2015, SS attacked the applicant again, resulting in his unconsciousness.  He claimed to have bleedings on the right leg and internal injuries.  His complaints to the police about the two incidents were of no avail.  Out of fear, he fled to Hong Kong for protection.  Details of his claim were set out at paragraph 7 of the Notice of Decision dated 26 April 2018 by the Director (“Director’s Decision”) and paragraphs 8 to 27 of the Board’s Decision as described below.    

The Director’s Decision

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

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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”).

8.  By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the dispute with SS was a private dispute and the alleged injuries failed to attain the minimum level of severity [13]-[14]; (ii) state protection was available to him [15]-[19]; and (iii) internal relocation was also an option open to him [21]-[26]. 

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 2 November 2018, the Board scheduled an oral hearing for his appeal, during which the applicant answered the inquiries from the Board.  The applicant refused to adopt the documents, the contents of which he confirmed to be true and accurate into evidence.  He was advised by the Board that the hearing before the Board was a fresh hearing.  He later confirmed that he had mentioned all the facts in relation to his claim [5].

10.  The Board explored the material aspects of the applicant’s claim with him [9]-[27].  Among others, it observed that the applicant could not provide any background information about SS [10] and neither could he recall when the subject land was transferred to his father [11].  He also provided vague answer to the alleged court case over the land dispute [12]. 

11.  The Board considered that the dispute was private.  On the applicant’s own evidence, he was unable to name his uncle’s political affiliation but simply stated that SS was the boss of a gang [29]-[32].  It further found that there was no state involvement [33]-[34].  Meanwhile, the Board opined that the applicant and his family could wait for the decision of the court case and there was no necessity to escape to Hong Kong [36]-[37].  The Board also refused to accept the applicant’s excuse of financial difficulty for not being able to relocate to other cities as the applicant was able to pay for the agent to come to Hong Kong [38]-[40].  His claimed fear that he would be accused of a false case was also found to be a speculation [41]-[42].  In the premises, the Board found that internal relocation was available to the applicant [43]. Based on the country of origin information, the Board also considered state protection a viable alternative [44]-[49].

12.  For the afore said reasons, the Board rejected his claim and dismissed his appeal.      

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he reiterated the facts of his case in support of his claim without specifying what errors the Board had committed in coming to its Decision.

DISCUSSION

15.  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).

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

17.  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.”

18.  The applicant has not raised any valid ground to challenge the Board’s Decision.

19.  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.

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

CONCLUSION

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