Singh Satveer v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 815/2018

[2020] HKCFI 1602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 815 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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) which confirmed the decisions of the Director of Immigration (“the Director”) refusing the applicant’s non-refoulement claim.

2.While the applicant named the Director as the proposed respondent, it is apparent that he was applying for leave to apply for judicial review against the Board’s decision. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Board as the proposed respondent and amending the Director as the proposed interested party.

3.The applicant, born in 1970, is a national of India.  He arrived in Hong Kong on 8 May 2015 using his own Indian passport.  After he was refused permission to land, he submitted his non-refoulement claim.

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [28] to [38] of the decision of the Board.  The claim was based on the fear that, if refouled, he would be harmed or even killed by one named Suraj Singh (“Suraj”) from the Samajwadi Party (“SP”) because he had unsuccessfully contested with Suraj in an election for the position of “village head” in June 2013.  He claimed that Suraj is a member of SP and connected with the local police and the State Minister, Mehboob Ali.  Suraj had express his hatred against the applicant from the outset of the campaign.  He requested the applicant not to fill out the form for the election and threatened that he would kill him.  At the end of June, Suraj won the election.  In around August 2013, the applicant was intercepted whilst driving his motorbike by Suraj and his supporters.  Suraj and one of his supporters were holding a gun.  The applicant heard them saying “Don’t show your face in front of me again, otherwise you would be killed.”  He reported the incident to the police station but was ignored and told that even if he reported to any other stations, he would also be turned away because Suraj was connected with the police and Mehboob.

5.In September 2013, he went to Delhi and stayed there for 13 months until December 2014.  After learning that Suraj had come to know his whereabouts, he left India for a 2-month trip to Indonesia, Bangkok and Myanmar.  When his visa expired, he returned to Delhi.  He stayed in Delhi for a month before coming to Hong Kong.

The Director’s Decision

6.By notices of decision dated 10 July 2015 and 19 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that his claim was not substantiated.  The first decision covered the torture risk^[1], BOR 3 risk^[2], and the persecution risk^[3]. The latter decision covered BOR 2 risk^[4].  The applicant lodged an appeal/ petition to the Board.  He attended an oral hearing before the Board on 28 September 2017.

The Board’s Decision

7.By Decision dated 27 April 2018, the Board rejected his appeal and confirmed the Director’s Decisions.  His case was rejected on all applicable grounds.  The Board’s main reasons for rejecting the claim were provided at [49-54] of its decision.  In gist, the Board found that his past experiences did not meet a minimum level of severity and he failed to show a reasonable possibility that he would face a real risk of harm or that he had a well-founded fear.  The Board noted that he was able to leave India on at least two occasions without encountering any problems.  There is no suggestion that the Indian government has any adverse interest in the applicant or that the incidents described by him involved any state or official capacity.  The Board was not persuaded that there are substantial grounds for believing the applicant would face real risk of being subject to harm or ill treatment, if he is refouled to India.

8.In any event, the Board further found that even if he had been able to show that he faced a real or genuine risk of harm as claimed, it would have found that such risk was confined to the local area where he had lived.  It found that internal relocation is permissible and it is not unreasonable for him to relocate to elsewhere in India.

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 10 May 2018 for leave to apply for judicial review.  He did not request an oral hearing.  The application is therefore considered on paper.

10.In his affirmation in support, the applicant only stated that the decision of the Director was unreasonable in that he failed to consider all the matters raised in his claim and/ or give adequate reason for his decision.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.The Director’s decisions are superseded by the Board’s decision and hence not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, the Court will only focus on the latter’s decision.

13.The grounds raised by the applicant are only general and vague assertions, without any particulars as to how the Director or the Board were unfair or unreasonable in the public law sense.  The grounds are his opinions only and not supported by evidence.  

14.In the present case, the Board gave adequate reasons for its findings.  Itdemonstrated in its decision that it took into account of all the circumstances as the applicant claimed.  Even on the basis of the claimed incidents, the Board found that the claimed fear of harm could not be substantiated.  In any event, any such risk was confined to the area he used to live.  The risk of harm could be effectively eliminated by internal relocation without hardship.

15.As mentioned, such matters are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.  I cannot see any basis to challenge the Board’s findings.  I should add that even in his own case, the applicant was able to live uneventfully for 13 months in Delhi and later spent a 2-month trip to Indonesia, Bangkok and Myanmar.  After the trip, he still chose to return to Delhi.  Such evidence is inconsistent with a real fear of harm in India.

16.Having reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  I accordingly refuse to grant leave to apply for judicial review.

Dated the 15^th day of July 2020

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