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

HCAL 956/2018

[2020] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 956 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submission of the Applicant being present/absent in open court.

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 1993, is a national of India.  On 2 April 2015, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

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 by his two paternal uncles because of a land dispute.  His father inherited 14 acres of farmland from his grandfather.  His uncles were wealthy and powerful people.  In about 2008 or 2009, the uncles got the applicant’s father drunk and caused him to sign some papers so that the applicant only inherited 8.5 acres of the farmland from his father when each of the two uncles received one half of the remaining 5.5 acres.  They even manipulated the land deed of the applicant’s family house and forced him and his family to leave the house.  They then continued in various incidents to threaten to kill him if he refused to transfer his portion of the farmland to them.

The Director’s decision

4.By a notice of decision dated 17 August 2017, 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 8 March 2018.

6.By a decision dated 16 May 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 claim at para [41-67] of its decision.  The reasons can be summarized as follows:

(1)  despite the inconsistencies in the evidence of the applicant, the Board gave him the benefit of doubt in relation to his claims of past experiences in India [42];

(2)  the Board, however, found that his uncles had not harmed him or his family members physically or demonstrated any real intent to seriously harm him or his family members [48b];

(3)  causing serious harm or killing the applicant would not assist his uncles in having the farmland transferred to them and one of the uncles is now sick [48e];

(4)  reasonable state protection is available to him [48g];

(5)  he failed to show a real or substantial risk that he would face a serious violation of his human rights and serious or intolerable harm [49];

(6)  in any event, any such risk was confined to the local area where he had lived, and could be effectively eliminated by internal relocation [68].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 28 May 2018 for leave to apply for judicial review of the decision of the Board.

9.By a letter dated 23 June 2020 sent to his address last reported to the Immigration Department, the court invited the applicant to submit any submissions that he would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

10.In the Form 86, the applicant did not set out any grounds for the relief sought.  In the affirmation in support, he only said he was not satisfied with the decision without any particulars.

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.  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, country of origin information, 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.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.

13.The court is under a duty to examine the decisions of both the Director and the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.

14.In the present case, the Board accepted the asserted primary facts which are favourable to the applicant.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

15.As explained above the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The ground raised by the applicant in his Form 86 and affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense.  I do not find any reasonably arguable basis to challenge the findings of the Board.

17.Indeed, even on his own account, the alleged past ill-treatment was of low intensity and frequency demonstrating a remote risk that he would be killed or seriously harmed in his country.  It cannot be established that the applicant would be at real risk of any type of proscribed harm, if refouled.

18.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.  It made a finding on credibility in favour of the applicant when it could have made an adverse finding based on the inconsistencies in his evidence.  There cannot be any criticism of the Board’s determination which is eminently reasonable.

19.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

20.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 15 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