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

HCAL 1917/2018

[2020] HKCFI 1847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1917 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant appeared at the hearing.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended to the effect that the Board is the putative respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong on 22 October 2013 as a visitor.  He overstayed since 6 November 2013 and was arrested by police on 5 February 2014.  He was transferred to the Immigration Department.  He lodged his non‑refoulement claim by way of written representation dated 7 February 2014.

5.The applicant claimed that, if refouled, he would be harmed or killed by his enemies.  He was a supporter of the Indian National Congress (“INC”) and his enemies were members of the Shiromani Akali Dal (“SAD”).  In August or September 2013, he and his friends were attacked by the SAD members with bats and wooden sticks.  He suffered injuries all over his body.  He had reported the matter to police.  But the police did not make investigation into the matter.  The story is contained in 27-34 of the Board’s Decision.

The Director’s Decision

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 29 November 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that it was no substantial ground to believe that he would have any real risk of harm if he returned to India [11]; that state protection would be available to him [17] and that internal relocation was an option open to him [23].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  He attended a hearing before the Adjudicator.

9.By the Board’s 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’s evidence was not credible for the reasons below (41-44):

a.he had given inconsistent evidence before the immigration officer and in his Notice of Appeal;

b.he refused to answer any question at the hearing before the Adjudicator;

c.the difference in his statement given to the immigration officer and in his Notice of Appeal was glaring, for which he refused to explain;

d.he had made statement that he came to Hong Kong for sight-seeing.

11.Therefore, all grounds in support of his claim failed.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 12 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 say what error the Board had committed in coming to its decision. 

DISCUSSION

14.The applicant confirmed that he had a fair interview with the immigration officer and a fair hearing before the Board.  He had no comments on the Board’s findings in paragraph 10 above.

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 10 above.

16.The Board did not accept the applicant’s factual evidence in support of his claim.  He therefore has no factual basis in support of his claim.

17.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.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 4^th day of August 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