Jagg Singh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1711/2018

[2019] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1711 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. He arrived in Hong Kong on 11 December 2014. He was arrested by police on 10 February 2015 and was then referred to the Immigration Department for investigation on 12 February 2015. On 13 February 2015, he lodged a non-refoulement claim.

3.His reason for his application is that if he was to be returned to India, he would be harmed or killed by a supporter of the Congress Party, Jageera Singh (“Jageera”).

4.In his statement given to the Director, he claimed that he was a member of Akai Dal Party and Jageera was close to the leader of the rival party, the Congress Party. In 2013, Jageera asked him to join Congress Party. He refused. In the ensuing election, the Congress Party won. Jageera became more aggressive towards him and his family. In a summer night in 2013, Jageera’s people came to his home with wooden sticks. They attacked him and his family. The neighbours came and they dispersed. He moved to his friend’s place where he stayed for one year. In October, the Jageera’s people came to where he was with hockey sticks and baseball bats. He escaped to another friend’s house. His friend suggested he come to Hong Kong. He took his advice.

The Director’s Decision

5.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC 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 under RC”).

6.By Notice of Decision dated 28 August 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board attended the hearing before the Adjudicator on 11 May 2018.

8.By Decision dated 17 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.Having considered the evidence, the Board held:

“38. However, I consider that the number and nature of inconsistencies and contradictions in the Appellant’s evidence was sufficiently serious as to undermine the reliability of the Appellant’s story …

56. … the Appellant could have taken steps to remedy the situation but he chose not to do. But that does not say that state protection is not available to him.

59. There is nothing to indicate that, if refouled, the Appellant will not be afforded the requisite level of protection from the government of India. I find that the Appellant cannot, on the fact as found, bring himself within any of the ground enumerated in the definition of “refugee” in Article 1 (A)(2) of the RC.”

10.The Board further found that the applicant was not subjected to BOR 2 risk [61]; BOR 3 risk [68] or torture within the meaning of section 37U of the Ordinance and the issue of acquiescence or failure of due diligence did not arise [78]; and finally, internal relocation was available to him [84].

11.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

12.In his affirmation in support of his application dated 22 August 2018, the applicant relied upon the following grounds, all on the Director:

a.  his Decision was unfair and unreasonable;

b.  he did not properly consider state acquiescence;

c.  he did not consider the applicant’s argument;

d.  he did not give enough weight to the Country of Origin Information in his favour; and

e.  he failed to maintain high standard of fairness.

DISCUSSION

The Director’s Decision

13.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

16.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

17.The above grounds are complaints against the Director only. The Board had heard his appeal and consider his argument. Those grounds do not apply to the Board.

18.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 6^th day of September 2019

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