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

HCAL 1812/2019

[2024] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1812 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.  The applicant applies for leave to apply for judicial review of the Decision dated 3 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”), which the applicant wrongly put as 25 June 2019.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 10 July 2024. 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; and the date of the Board’s Decision is 3 May 2019 instead of 25 June 2019.

The applicant

4.  The applicant, aged 31, is an Indian. He entered Hong Kong illegally on 24 December 2015 and he surrendered to the Immigration Department on 28 December 2015. The applicant made a non-refoulement claim on 24 May 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his uncle and cousin due to a land dispute.

5.  According to the applicant, his grandfather evenly divided a piece of agricultural land to his father and his uncle. In terms of residence, the ancestral house was also divided between the applicant’s father and uncle. The applicant claimed that his uncle and his cousin had political affiliations, with the latter also had connections to the local gangsters.

6.  In around 2008/2009, his uncle sold part of his land. One day in mid-2013, the applicant’s father and uncle had an argument over the size of their respective plots. Later on, towards the end of 2013, the applicant also had a dispute with his cousin regarding irrigation, which ended up into a heated argument between the applicant and his father on one side and his uncle and cousin on the other.

7.  Around two months later, sometime in the beginning of 2014, while the applicant was standing near the farmland, three unknown male carrying baseball bats ran towards him. When the applicant was running away, one of them threw a baseball bat at him, which hit the left side of his head (“the attack”). The applicant told his father about the attack, who advised him against reporting the matter to the police.

8.  The applicant believed that his uncle was the mastermind behind the attack. Although he feared that his life would be in danger, he continued farming for another 5-6 months until harvest. Thereafter, pending the process of his passport application, the applicant moved between his grandparents’ home, his aunt’s home and his own home. He managed to obtain his passport on 27 August 2015 and left India on 18 December 2015. Eventually, he sneaked into Hong Kong on 24 December 2015.

9.  While in Hong Kong, the applicant maintained weekly contact with his parents, but they did not provide him any updates about his uncle’s hostility towards him. The applicant was of the view that he could not seek protection from the police because they would only act upon the instruction of people in power. He also considered internal relocation not viable because his uncle and his cousin had political affiliations, while the latter also had connections to the gangsters, so that they could easily find his whereabouts within India.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 February 2018 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

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

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment by his uncle and his cousin indicated that they had no real intention to seriously harm or kill the applicant. There was also no evidence showing that they had means to find the applicant anywhere within Vietnam [11].

13.  Furthermore, (i) state protection would be available to him [12] - [16]; (ii) internal relocation would be viable [17] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18] - [24], Persecution risk [25] - [30] or Torture risk [31] - [33].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 13 December 2018, the Board conducted an oral hearing.

15.  During the hearing, the applicant testified that both his father and his uncle had rent out their plot of land. Meanwhile, he gave inconsistent evidence regarding the details of the attack and the issue of the land dispute was also different [9].

16.  The Board found that aspects of the applicant’s claim lacked in detail and implausible. His evidence about his uncle and his cousin’s political affiliations and connections to the gangsters were at best hearsay. It was also illogical that the applicant would continue farming for another 5 - 6 months if the risk of harm was as imminent as he claimed [11].

17.  The Board considered that the centrepiece of the applicant’s claims not credible and could not be substantiated [12]. It was rejected that he had a land dispute with his uncle/cousin, which eventually led to the attack. In any event, even if the evidence given by the applicant was accepted, he only faced a low risk of ill-treatment upon return to India given that both his father and his uncle had already rented out their plot of land and that the past behaviour of his uncle also showed that he had no real intention to seriously harm or kill the applicant [18].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Torture risk or Persecution risk [13] - [18], [28] - [41]. Furthermore, state protection and internal relocation would also be available according to the country of origin information [19] - [27].

19.  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

20.  The applicant has filed Form 86 on 2 July 2019 to apply for leave to apply for judicial review of the Board’s Decision.

21.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

22.  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).

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

24.  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.”

25.  For the reasons given above, the Board rejected the applicant’s evidence in support of his claim. It went further to say that even if his story were accepted, his risk of being harm would be very low.

26.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

CONCLUSION

28.  I refuse to grant leave to 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