Case Document

100%Judiciary

HCAL 2895/2018

[2020] HKCFI 1883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2895 of 2018

BETWEEN
	Nirmal 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed 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 30 March 2014 illegally and was arrested by police. He was transferred to the Immigration Department. He lodged his non-refoulement by means of a written representation on 30 April 2014.

5.He claimed that if refouled, he would be harmed or killed by people of the Congress Party and Shiv Sena Party because of political disputes. He was a follower of the Shiromani Akali Dal (“SAD”). He was invited to leave SAD and joined the Indian National Congress (“INC”). He refused. Two members of INC were looking for him and caused troubles to him. He was once assaulted by those people. He left India to avoid them. The background facts are contained in paragraphs 26-44 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 6 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any substantial risk of being harmed or killed by his enemies if he returned to his country [11]; that state protection would be available to him [16] and internal relocation was an option open to him [19].

The Board’s Decision

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

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 50-75 of the Board’s Decision. Below is a summary of its findings.

a.  The applicant gave hearsay evidence that his brother told him that his enemies were looking for him.

b.  The applicant’s evidence that his enemies invited him to join the INC was implausible as he was not a significant figure in SAD and his enemies should have no interest in him.

c.  From his evidence, there was no real risk of persecution if he returned to India.

d.  There was no evidence that the government or its agents were involved in the incidents.

e.  The injuries related by the applicant did not meet the minimum level of severity for ill-treatment under BOR 3 risk.

f.  There was no evidence of torture within the statutory context.

g.  Reasonable state protection was available to the applicant.

h.  Internal relocation was an option open to him.

Application for leave to apply for judicial review

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

11.In his affirmation in support of his application, he said that he was not satisfied with the Board’s decision.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. … 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.”

14.His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

15.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.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 7^th day of August 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 7/8/2020 Nirmal 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 7/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10845/18/3/297/IN2079 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 518/18(formerly RBCZ 10882/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)