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

HCAL 829/2018

[2020] HKCFI 1953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 829 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1993, is a national of India.  He arrived in Hong Kong on 30 April 2013 and was permitted to remain as a visitor until 13 May 2013.  Having overstayed in Hong Kong, on 27 July 2013, he was arrested by the police and referred to the Immigration Department.  A removal order was issued against him on 19 August 2013.

3.On 10 September 2013, he submitted a claim to the UNHCR for persecution risk.  He was subsequently released on recognizance.  On 4 March 2014, he further lodged his non-refoulement claim. 

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 35-42 of the first 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 his paternal uncle and his uncle’s son because they want to “snatch” his land.  His uncle is a member of a political party SAD.  The applicant had been twice attacked at his uncle’s instigation.

The Director’s Decision

5.By notices of decision dated 15 January 2016 and 23 May 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The first decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The second decision covered BOR 2 risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decisions.  He attended an oral hearing before the Board on 27 January 2017 and gave oral evidence at the hearing.

The Board’s Decision

6.By a decision dated 23 June 2017, the Board rejected the appeal/ petition on the BOR 3 risk, the persecution risk, and the torture risk.  By a decision dated 3 May 2018, the Board without holding another oral hearing further rejected the applicant’s claim, confirming the Director’s decisions.  The Board’s two decisions covered all applicable grounds.

7.In the Board’s first decision, it gave detailed reasons for rejecting the claim [20, 46-78].  In summary, the Board found: the applicant’s account was riddled with deficiencies and inconsistencies; there was material discrepancy striking at the heart of his claim; and his conduct was inconsistent with someone in genuine fear for his life and safety [66].  Further and in any event, even on his own account, the past ill treatment was of low intensity and frequency.  And the severity of the two attacks came nowhere near the level of severity required to constitute torture or CIDTP [68-70].  Moreover, state protection was available to him and internal relocation was a viable option.  Having considered all the evidence and circumstances, the Board found that he was not at real risk of any of the proscribed types of harm.  For the same basis of reasons, the Board in its second decision affirmed the Director’s second decision.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 11 May 2018 for leave to apply for judicial review of the decisions of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers. 

9.In the Form 86 and affirmation in support, the applicant did not state any specific grounds of his intended judicial review. 

10.By a letter dated 13 May 2020, the Court invited the applicant to submit information including any submissions that he would like to make.  He replied to the Court by a letter saying that he had submitted his documents already and that he did not want to go back to India.

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.As the Director’s decisions have been superseded by the Board’s decisions, they are not susceptible 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 decisions.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his accounts of facts based on the major inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, there was no basis for the applicant’s fear.  I also agree that his conduct by failing to claim for protection while in Macau and his conduct since arriving in Hong Kong was inconsistent with someone in genuine fear for his life and safety.  In any event, the Board found that state protection was available and internal relocation was viable not being unduly harsh.  As mentioned above, such assessment and findings are within the province of the Board and the Director.  The Court will not interfere with the same unless they are reversible on public law grounds.

14.The grounds raised by the applicant did not pinpoint any procedural irregularity, unfairness or unreasonableness.

15.In the present case, 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.  It is obvious that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  I do not find any reasonably arguable basis to challenge the findings of the Board.

16.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 find any failure to apply high standards of fairness on their part.

Disposition

17.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

Form CALL-1