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

HCAL 822/2018

[2020] HKCFI 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 822 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”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1983, is a national of India.  He arrived in Hong Kong on 24 December 2015 as a visitor and overstayed from 8 January 2016.  On 2 February 2016, he surrendered to the Immigration Department and later lodged his non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 8 of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by anti-Sikhism people and Shiromani Akali Dal (Badal) (“SAD”) which was a strong political party and ruling party in Punjab.  He had reported some “traitors” who had desecrated the Holy Book of Sikhs and hence received threats that he would be kidnapped or killed.

The Director’s Decision

4.By a notice of decision dated 24 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended a hearing before the Board on 3 April 2018 and gave oral evidence at the hearing.

The Board’s Decision

5.By a decision dated 7 May 2018, the Board rejected the appeal/ petition on all applicable grounds, confirming the Director’s decision.  

6.The Board gave detailed reasons for rejecting the claimat [9-78] of its decision.  In a nutshell, the Board did not accept that the applicant had been truthful in his claims and there were a number of significant inconsistencies regarding his key claims [12, 36].  It found that he was not a credible witness and did not accept the essential primary facts in support of his claim and that he fabricated his entire claim [59].  Furthermore, the Board found out that SAD was no longer the ruling party in Punjab alluding to sufficiency of state protection to the applicant [62-65].  Having considered the totality of the evidence before it, the Board rejected the applicant’s factual basis underlying the applicant’s non-refoulement claim.  It concluded that the applicant would not be at any real risk of harm or ill-treatment, if refouled.

Application for leave to apply for judicial review

7.The applicant filed a Form 86 on 11 May 2018 for leave to apply for judicial review.  In his Form 86, the applicant did not state any grounds of judicial review.  In his affirmation in support of the application, he only stated that the decisions of the Director and the Board were not correct and they had failed to consider the “ground realities” in India before reaching at their decisions.

8.By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that he would like to make.  Since then, he has not made any response or submission to the Court.

Discussion

9.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.

10.As the Director’s decision has been superseded by the Board’s decision, it is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

11.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment.

12.As mentioned, assessment of evidence/ primary facts and the risk of harm 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.  The applicant’s claim therefore has no factual basis to support.

13.The complaints raised by the applicant are general assertions, without any particulars as to how the Board was unfair or unreasonable in the public law sense.

14.The Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

15.Having considered 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 do I see any failure to apply high standards of fairness on their part.

Disposition

16.For the reasons given, there is no prospect of success in the applicant’s intended application.  I accordingly refuse to grant leave to apply for judicial review.

Dated 7^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