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

HCAL 924/2018

[2020] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 924 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 1994, is a national of India.  He first arrived in Hong Kong on 9 October 2015 and was refused permission to land and removed back to India on the same day.  No claim for protection was made.  On 20 November 2015 the applicant surrendered to the Immigration Department claiming that he had entered Hong Kong unlawfully on 17 November 2015.  He was subsequently released on recognizance.  He made his non-refoulement claim by written representation on 7 July 2016.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [8-13] 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 his 2 paternal uncles so that they will take possession of the land he inherited from his grandmother.  He claimed that he inherited the share of land from his grandmother who did not have good relationship with his uncles.  When she died in 2009, she transferred the land to the applicant and his father in equal shares.  The two uncles did not inherit anything from her.  Since about 2010, his uncles had harassed and threatened him that they would kill him if he did not give them his share of the property.  He reported the matter to the police but no action was taken by them.

The Director’s decision

4.By a notice of decision dated 25 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered  torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The

5.The applicant attended a hearing before the Board on 24 January 2018.

6.By a decision dated 25 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claimat para [33-57] of its decision.  The reasons can be summarized as follows:

(1)  the applicant’s account of primary facts differed considerably between his written and oral evidence to the Director and to the Board [33];

(2)  the nature and extent of the inconsistencies and his failure to recall important aspects of his claims was due to the fact that he had fabricated the entirety of his claims in relation to the land [36];

(3)  his claims in relation to the land dispute are not truthful and the Board was not satisfied he genuinely fears he will be subjected to harm on this basis [43].

8.Having considered the totality of the evidence before it, the Board refused to accept that there was any such land dispute or that his uncles had ever harmed or threatened him or his father in relation to the land issue.  It was not satisfied that there were substantial or strong grounds or a real chance or a real risk that the applicant would suffer the proscribed types of harm, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 24 May 2018 for leave to apply for judicial review of the decision of the Board.

10.By a letter dated 26 May 2020, the court invited the applicant to submit information including any submissions that he would like to make.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

11.In the Form 86, the applicant did not set out any grounds for the relief sought.  In the affirmation in support, he only stated that the decision of the Board was not fair.

Discussion

12.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.  In particular, 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 Country of Origin 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.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

14.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 account of primary facts based on the major inconsistencies in the applicant’s evidence and his failure to recall important aspects of his claims in the hearing before the Board.  It found him not a truthful witness and fabricated his claim.  It did not accept that there was such a land dispute or that he had been harmed or threatened by his uncles. On the factual findings, there would be no basis for the applicant’s claimed fear.

15.As explained above, assessment of evidence and risk of harm are primarily 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. 

16.The complaint raised by the applicant in his Form 86 and affirmation was only a vague assertion without particulars or evidence in support.  It cannot be a viable ground or reasonably arguable to challenge the findings of the Board.

17.The Board rightly pointed out the applicant’s failure to raise non-refoulement protection when he first arrived in Hong Kong on 9 October 2015.  Indeed, the applicant’s conduct in Hong Kong by his delay in lodging the claim for protection damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

18.Even on his own account, the alleged past ill-treatment was of low intensity and frequency.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

19.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

20.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 on their part to apply high standards of fairness in their decisions.

Disposition

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

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

Dated 28 September 2020

Form CALL-1