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

HCAL 927/2018

[2020] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 927 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 1988, is a national of India.  He arrived in Hong Kong on 19 May 2012 and was permitted to remain until 2 June 2012.  He overstayed and remained in Hong Kong unlawfully.  On 18 February 2016 he surrendered to the Immigration Department.  He was subsequently released on recognizance on 21 June 2016.  He later lodged a non-refoulement claim which was received by the Immigration Department on 23 August 2016.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [25-37] 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 because he had a land dispute with a man named Raj Khurana who owned a piece of land adjacent to the piece of land owned by the applicant.  Khurana was very powerful and influential.  He was formerly a member of a political party and member of Legislative Assembly.  Khurana wanted to build a hotel on his land and to take over the applicant’s land for his project.  He asked the applicant to sell him his land but the applicant refused.  In July 2011, Khurana sent his personal assistant, Mr Rash, together with 2 policemen to the applicant’s home asking him to sell the land.  The applicant refused.  Rash said nothing and the police officers did not press further.  The applicant was subsequently attacked in 2 incidents by people armed with weapon, among them was Rash.  In fear, the applicant left his village to stay in other areas for a few months until he left India for Hong Kong.

The Director’s decision

4.By a notice of decision dated 30 December 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 Board’s decision

5.The applicant attended a hearing before the Board on 9 March 2018.

6.By a decision dated 30 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 reasons for rejecting the applicant’s claimat para [46-52] of its decision.  The reasons can be summarized as follows:

(1)     The Board did not challenge the land dispute and primary facts asserted by the applicant;

(2)     Had the attackers wanted to inflict serious injury, they were in a position to do so.  Moreover, the second attack appeared to be a random incident [46A (c)];

(3)     Khurana knew where he lived but mounted no concerted efforts to seriously harm him [46A (d)];

(4)     Khurana is now deceased.  No threats had been made against any other members of his family.  The land is still vacant [46A (e)];

(5)     There is no evidence that the applicant or any members of his family suffered any serious harm or serious injury.  The applicant’s past experiences do not amount to ill-treatment for the purposes of BOR 3 [46B (b)];

(6)     There is no suggestion that the incidents involve any state actor acting in an official capacity [46C (c)];

(7)     In any event, any risk of ill-treatment would be confined to the area he lived and such risk could be effectively eliminated by internal relocation [52].

8.Having considered all the circumstances relied on by the applicant, the Board found that the applicant was not at real risk of any of the proscribed types of harm.

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 12 June 2020, the court invited the applicant to submit any submissions that he would like to make and indicate whether he would like to have an oral hearing.  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 ground for relief sought.  In the affirmation in support, he only stated that the decisions of the Director and the Board are not correct and they have failed to consider the ground realities in India.

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 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.

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 accepted the asserted facts most favourable to the applicant.  It only disagreed with him on the assessment of risk flowing from the incidents alleged.  Further and in any event, it found that any risk of harm could be eliminated by internal relocation which was reasonable option for him.

15.As explained above assessment of evidence, risk of harm, and viability of internal relocation 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 complaints raised by the applicant in his Form 86 and affirmation are general and vague assertions.  I do not find any reasonably arguable basis to challenge the finding of the Board.

17.The Board was fair in the assessment of credibility.  The applicant’s conduct in Hong Kong by his delay in lodging the claim (4 years after his arrival in Hong Kong) for protection could have been viewed adversely on 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 which did not reach the level of severity required by law to constitute torture or CIDTP.  Khurana has died.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

19.There cannot be any criticism of the Board’s 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 realistic prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 8 October 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