Case Document

100%Judiciary

HCAL 2885/2018

[2020] HKCFI 1746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2885 of 2018

BETWEEN

	Rajbir 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 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.The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) had made two decisions, one dated 28 April 2017 (“the Board’s Decision”), the other dated 13 December 2018 (“the Board’s Further Decision”). This is the applicant’s application for leave to apply for judicial review of the Board’s Further Decision. He did not challenge the Board’s Decision.

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and deleting the Board as interested party. The Director’s Decisions dated 11 February 2015 and 17 May 2017 respectively will not be subject to judicial review as there are no exceptional circumstances. See Re: Aioub Ali [2019] HKCA 1329 dated 2 December 2019,

The applicant

3.The applicant is an Indian national. He came to Hong Kong on 25 and 26 January 2014 respectively and was on each occasion denied entry by the Immigration Department. He was removed to Macau. He came to Hong Kong again on 27 January 2014 and raised a non-refoulement claim.

4.He claimed that if refouled, he would be harmed or even killed by his uncle Sahib Singh and his men as he refused to vote for Shiromani Akali Dal (“SAL”) in the Legislation Assembly Election in his locality in 2012. He also said that he would face a risk of being arrested by Indian police in relation to an accusation made by Sahib, which he claimed to be false case framed by Sahib.

5.He and his family were supporters of the Indian National Congress (“INC”). His uncle Sahib, who was also a supporter of INC, converted to be a supporter of SAL. Sahib tried to persuade him to join SAL. He refused. There was an Assembly Election of MLA in 2012. Sahib told him to vote for SAL. Again, he refused. Sahib threatened him that he would teach him a lesson and would get police to frame up a case against him so that he would stay in jail for a long time. As it turned out, SAL won the election. Sahib took 3 or 4 people with him to his house and insulted him for not supporting SAL. They also assaulted him with wooden sticks. He was injured and fell unconscious. He received medication but did not report the matter to police. A few days later, Sahib and some police officers went to his house. He escaped and hid himself up. He moved to live in Golden Temple for three months. However, one day he saw Sahib’s people approaching him. He was worried and moved to live in another place where his friend lived. One day in December 2013, his friend told him that he saw Sahib’ people around looking for him. He advised the applicant to leave India for Hong Kong. He took his advice.

The Director’s Decisions

6.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”).

7.By Notice of Decision dated 11 February 2015 (“the Director’s Decision”), the Director refused his claim on the risks above other than BOR 2 risk for the reason that his claim was not substantiated. The Director took the view that the level of risk as he alleged if he returned to India was low [23]; that state protection was available to him [28] and internal relocation was an option open to him [30]. By Notice of Further Decision dated 17 May 2017 (“the Director’s Further Decision”), the Director found that his claim under BOR 2 risk was not established.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 14 October 2016. However, he elected not to give evidence [28].

9.By the Board’s First Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found that the applicant had made up stories and exaggerated to such an extent that they could not be believed [40]. See §§29‑41,

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.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

13.The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator. His duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decisions to him. He had no comments on the Board’s findings.

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 to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

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 of the Board’s Further Decision. Accordingly, I dismiss his application.

Dated the 30^th day of July 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 30/7/2020 Rajbir 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 30/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1032/15/2/180/IN271 & BOR 666/17/5/166/IN178 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 164/14 & RBCZ9001556/17 (formerly RBCZ/32/14)(T5S8) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)