Case Document

100%Judiciary

HCAL 1851/2018

[2020] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1851 of 2018

BETWEEN

	Gurcharan Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	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 Applicant being absent 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 29 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 failed to attend the hearing scheduled on 12 December 2019 without any prior notice or explanation. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 13 January 2014 and was permitted to stay as a visitor until 27 January 2014. He overstayed and was arrested by police on 14 February 2014. He was referred to the Immigration Department. He lodged a non-refoulement claim on 24 February 2014.

5.He claimed that if refouled, he would be harmed or even killed by his uncle, Balkar Singh because he had a land dispute with him.

6.His grandfather divided his piece of land into four portions and he gave one portion to each of his three sons, reserving for himself. He gave his portion to the applicant’s father. Uncle Balkar was not happy about it. According to the applicant’s mother, Uncle Balkar killed his father by hitting him on his head. Upon his decease, his father’s land was inherited by the applicant and his brother. Uncle Balkar pressed the applicant to transfer the land to him. Between January 2008 and June 2009, Uncle Balkar threatened to kill him and beat him up with wooden sticks for 10 to 15 minutes. In September 2012, Uncle Balkar threatened him as well. His friends advised him to leave India for Hong Kong. He took the advice and came to Hong Kong on 13 January 2014.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 27 December 2017, the Director rejected his claim for the reason that his claim was not substantiated. The Director took the view that the risk of his being harmed or killed by Uncle Balkar if he returned to India was low [11]; that state protection was available to him [12] and internal relocation was an option open to him [18]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 3 July 2018.

10.By the Board’s Decision, the Board refused his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that it did not accept that there was a dispute between the applicant and his uncle over the piece of land; that Balkar killed the applicant’s father; that Uncle Balkar had made numerous attempts to harm the applicant from January 2008 to the time he departed India for Hong Kong and that it was not satisfied that the applicant genuinely feared or was at risk of harm from Uncle Balkar if he returned to India [44]. See §§34-45 of the Board’s Decision. The Board further considered that it was not harsh for the applicant to relocate to other places in India even if he had the fear as he alleged [45].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.There is nothing from the applicant or from the Board’s Decision for this Court to interfere with the Board’s decision.

16.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 18^th day of June 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 18/6/2020 Gurcharan 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 18/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9802/18/1/75/IN1842 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3150/17 (fomerly RBCZ 1484/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)