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

HCAL 2517/2018

[2022] HKCFI 3267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2517 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 2 June 2015 and was permitted to stay until 16 June 2015. However, he did not depart and had overstayed since 17 June 2015.  On 25 June 2015, he surrendered to the Immigration Department.  On 15 October 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Milan’s two brothers and her husband.

5.  According to the applicant, he started a romantic relationship Milan in 2007.  Her family was rich and influential and disapproved of their relationship as they were from different castes and religions.  The applicant disobeyed.  From early 2011 to December 2013, the applicant encountered four incidents with Milan’s two brothers.  In these incidents, the applicant was assaulted and injured.  He even had a metal implant in his left leg.  Milan told the applicant that she entered an arranged marriage in May 2014.  However, they continued their relationship underground.  One day, the applicant was threatened and assaulted by Milan’s husband.  Thereafter, the applicant claimed to be threatened by the police and also by Milan’s brothers again with a gun in March 2015.  Out of fear, the applicant eventually fled to Hong Kong for protection.  While in Hong Kong, the applicant claimed that his cousin was killed in a car accident which he suspected to be orchestrated by Milan’s brothers.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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 8 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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) Milan’s brothers and her husband had shown no real intention to harm or even kill him [15]-[18]; (ii) state protection would be available to him [19]-[25]; and (iii) internal relocation was a viable alternative [26]-[31].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 10 October 2018, the Board conducted an oral hearing for his appeal, during which he answered the inquires with the assistance of an interpreter [4].  Before the Board, the applicant confirmed that he had ceased contact with Milan since 2015 [7].

9.  The Board noticed that the applicant’s evidence on Milan and their relationship was vague and inconsistent.  In particular, he was unable to recall any basic details, such as education background or occupation of Milan who he claimed to have dated for a certain period of time [35].  The Board also noticed that the applicant gave inconsistent accounts on the police’s visit and their threatening gestures [36].  It observed that the applicant’s evidence on his cousin’s death was problematic [37] and his evidence on the alleged assaults were inconsistent [38].  The Board found that the aforesaid undermined the applicant’s credibility. 

10.  In addition, on the applicant’s own evidence, he claimed that he rarely met Milan and they had ceased contact long time ago.  The Board therefore concluded that he would not face any real risk of harm from Milan’s brothers or her husband as all they wanted was for the applicant to stop contacting Milan [41]-[42].  As a result, the Board found that the applicant’s claim was unsubstantiated.  In any event, the Board found that internal relocation was not unduly harsh for the applicant [44]-[55].

11.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 9 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant enclosed the hearing bundle and his grounds below.  Since only the Board’s Decision is amenable to judicial review, I shall focus on the Board’s Decision.

(1)   He believes that the Board’s Decision is wrong as it is unreasonable and unfair.  He considers that he has the right to life under Article 2 of the Bill of Rights Ordinance.  If he returns to his country, he will be killed. His right to life should give him the protection.

(2)   He refers to a case where a person, who was refouled was killed by his enemies soon after he arrived at his country.  The Hong Kong government should not allow this to happen.

(3)   The corruption and incompetency of his country should have been taken into account.

(4)   The Board has failed to administer higher standards of fairness to his case.  Its decision is therefore Wednesbury unreasonable or irrational.

DISCUSSION

14.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  Those grounds in paragraph 13 above are his bare assertions or opinions without evidence in support.  Although he is correct to say that he has the right to life under the Bill of Right Ordinance, however, the Board did not accept his evidence on the facts of his case, which the Board was entitled to do so after hearing his evidence.  There is no evidence from the applicant to challenge the Board’s finding of the fact.

18.  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.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  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