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

HCAL 965/2018

[2020] HKCFI 2638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 965 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 1990, is a national of India.  He arrived in Hong Kong on 21 April 2015 from Macau and sought non-refoulement protection.  According to the record of Immigration Department, he had previously attempted to enter Hong Kong from Macau claiming that he was a student intending to stay for 1 day for leisure.  He was refused permission to land.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [9-19] 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 people of the ruling political party.  He supported another party.  He had been assaulted and threatened that he would be killed if he refused to join their party.  He was also falsely accused of murdering one of the attackers who assaulted him in an incident happened in around May 2014.  He fled to another area where he stayed for over half a year.

The Director’s decision

4.By notices of decision dated 10 August 2015 and 5 June 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4]. The Director found the applicant’s overall credibility in doubt.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 20 December 2017.

6.By a decision dated 21 May 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at para [34-73] of its decision.  The essential reasons can be summarized as follows:

(1)  the applicant’s account of events was not acceptable because there was no concrete evidence in support of his claim and there were also inconsistencies and implausibility in his account of events [34];

(2)  even if his evidence were accepted, the injuries he suffered were not serious and the May 2014 incident had nothing to do with politics [35];

(3)  the low intensity of past ill treatment is indicative of a small future risk of harm [36];

(4)  in any event, state protection is available and internal relocation is a viable option [73].

8.Having considered all the circumstances relied on by the applicant, the Board was not satisfied that the applicant would face a substantial risk of harm, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 29 May 2018 for leave to apply for judicial review of the decision of the Board.

10.By a letter dated 24 June 2020 sent to his reported address, the court invited the applicant to submit information including 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.

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 decisions of the Director and the Board are unfair and unreasonable.

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, 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.

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 and implausibility in the applicant’s account of events.  On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.  Moreover, it further found that state protection and internal relocation are available to the applicant.

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 complaint raised by the applicant’s affirmation was a general and vague assertion, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.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.  There was no valid reason why a ruling party in his country had to target him and force him to join their party with threat of serious violence or even death.

18.There cannot be any criticism of the Board’s findings and 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 failure on their part to apply high standards of fairness in their decisions.

Disposition

20.For the reasons given, there is no 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