Baljinder Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1227/2018

[2021] HKCFI 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1227 OF 2018

BETWEEN

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 submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 8 November 2014 as a visitor.  He overstayed and surrendered to the Immigration Department on 24 November 2014.  He lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by his uncle and his sons because of a dispute over his grandfather’s will bequeathing all his assets to his father, leaving nothing to his uncle.  His grandfather made such decision because his uncle was a drug addict and he also trafficked in dangerous drugs.  His grandfather made his will in 2003 or 2004. Since then, his uncle had knowledge of the will and disputed it.  He came with other people to attack the grandfather and his father with weapons. As a result, his grandfather and his father were injured.  They reported the matter to police.  His uncle was arrested, but was released shortly afterwards because he bribed the police.  He was also connected with the Akali Dal Party people, who were influential.  His uncle had also come to his home together with his son, Paminder to demand shares of the grandfather’s property. He was advised to move to Ludhiana to avoid his uncle and his son.  In August 2014, his father died.  His body was found to have injuries of broken neck and spinal cord in post-mortem examination.  He suspected that it was his uncle, who had murdered his father.  In November 2014, he came to Hong Kong.  The details of the incidents are contained in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 28 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that the level of risk of harm from his uncle and his sons upon his return was assessed to be low [15]; that state protection would be available to him [16] and that internal relocation was available and reasonable for him [22]. For the reasons stated, the Director reject his claim on all the risks in paragraph 6 above.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 13 March 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons below.

(1)   There was no evidence that his uncle and his sons would attack him.

(2)   There was no objective evidence to support that the land was registered in his name; that the state was involved or acquiesced in his uncle’s violence to his father and that state protection was not available to him.

(3)   There was no reliable evidence that he had a well-founded fear of persecution under the Persecution risk. [65-79]

(4)   For all the reasons above, his claim on the risks in paragraph 6 above were rejected. [89, 96, 100 and 108]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 29 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that he could not return to his country because his life would be in danger and he asked this Court to help him stay in Hong Kong until his problem had been solved.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 9 above.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:

“13.… … Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

14.His grounds in support of this application do not assist his application.  He has not even set out what error the Board had committed in coming to its decisions.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 1^st day of March 2021

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