Case Document

100%Judiciary

HCAL 1837/2018

[2020] HKCFI 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1837 of 2018

BETWEEN
	Gurjit Singh	Applicant

	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office

	and
	Director of Immigration	Putative Interested Party

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 oral submission by the Applicant in open court;

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

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 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) with the Director of Immigration (“the Director”) as interested party.

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 18 September 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Director as the respondent, adding the Director as the interested party and by deleting the Torture Claims Appeal Board as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 5 May 2015. He surrendered to the Immigration Department on 7 May 2015. On 10 September 2015, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by his paternal uncle Balwinder Singh and cousin Sunny Kumar.

6.He left India because of the following incidents.

a.     His father passed away in 2006/2007. He considered that his father had inherited a piece of land from his grandfather, but the land was occupied by his paternal uncle. In 2012, he went to the land and told Balwinder that he wanted to claim back the land. Balwinder refused and pushed him away. He was not injured.

b.     In 2013, he went to the land again where had had a fight with his cousin by pushing each other, who warned him that he would be in trouble if he came again.

c.     In 2014, he went to the land again together with his mother and brother. There was a fight of pushing one another. Balwinder threatened to kill him if he came again. They left. He was scared.

d.     Balwinder went to his home one day and hit him with his hands. He threatened to kill him if he visited the land again.

The Director’s Decision

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

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

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”).

8.By Notice of Decision dated 24 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and he attended the hearing on 27 April 2018.

10.By Decision dated 30 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It came to the conclusions below.

a.     The Board accepted the facts as the applicant stated [32].

b.     There was no past ill-treatment by his uncle to him. His uncle only verbally threatened him. He did not carry out the threat of killing the applicant. There was not a genuine and substantial risk that the applicant would be killed if he returned to India [33-37].

c.     State protection would be available to the applicant [40].

d.     He had many options of relocation in India, such as Delhi [43].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he said that his life remained in danger if he returned to India.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

15.It is obvious that the Board, having accepted his facts, considered that he was not eligible for non-refoulement protection under the laws and Convention.

16.I put the Board’s findings above to the applicant and asked him if he had any comments on them. He said that he had no comments.

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 Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018)at §42held that the Board’s decision is final, subject to judicial review. However, there is no evidence to show that the Board erred in its application of the laws to his case.

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

CONCLUSION

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

Dated the 15^th day of May 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15/5/2020 Gurjit Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7966/17/8/4/IN1514 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1343/17 (formerly RBCZ 13543/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)