Meet Hardeep Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 469/2019

[2021] HKCFI 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 469 OF 2019

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 submission by the Applicant 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1986, is a national of India.  He arrived in Hong Kong on 31 October 2014 and was permitted to remain until 14 November 2014 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 27 January 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 [21-41] 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 girlfriend’s father and brother as they opposed their relationship and proposed marriage.  Her family belongs to a higher caste and the applicant belongs to a lower caste.  They assaulted him and threatened to kill him if he did not leave his girlfriend on a few occasions in 2013 and 2014.  In August 2014, he decided to move to live with his paternal aunt at her home at a different area.  He had stayed there for 2 months before he departed India for Hong Kong with his passport.

The Director’s decision

4.By a notice of decision dated 29 September 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].

5.In essence, the Director found that the level of risk of harm is low, state protection is available, and internal relocation is a reasonable option to the applicant.

6.The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

7.The applicant attended an oral hearing before the Board on 20 September 2018.

8.By a decision dated 16 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

9.The Board gave detailed reasons for rejecting the applicant’s claim at para [43-48] of its decision.  In a nutshell, the Board found that his evidence relating to the primary events was very vague, general, conflicting and contradictory [43].  The core of his story inherently lacks credibility and his general credibility is undermined.  It was not persuaded that he was giving a truthful or reliable account of events which he said occurred in India before he came to Hong Kong [48].  The Board was not persuaded that he ever maintained any relationship with the girl friend as he claimed.  Nor was it satisfied that he had ever been threatened or assaulted by her father and brothers [52].

10.Having considered the totality of the evidence before it, the Board rejected substantially all the applicant’s factual basis underlying the applicant’s non-refoulement claim.  It concluded that the applicant would not be at any real risk of harm or ill-treatment, if refouled.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 19 February 2019 for leave to apply for judicial review of the decisions of the Director and the Board.

12.In his affirmation in support, he said: (i) he has a political problem in his country and would be killed if returned to his country, (ii) internal relocation is impossible for him, (iii) the hearing bundle supplied by Immigration Department was in English which he could not understand.

13.He did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

14.The relevant principles regarding non-refoulement claims 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.

15.When the applicant pursued his 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 will nevertheless also examine the decision of the Director, it is unnecessary to delve into the decision of the Director.  This decisionwill only focus on discussing the Board’s decision.

16.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 accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, it concluded that the applicant would not be at any real risk of harm or ill-treatment.  On the factual findings of the Board, there cannot be any basis for the applicant’s claimed fear.

17.On the other hand, the Director’s assessment of low risk of harm was based primarily on the circumstances relied upon by the applicant, COI materials, and its assessment of state protection and internal relocation.

18.As mentioned above, all such assessments 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.

19.The grounds raised by the applicant are vague assertions, without particulars and evidence in support. His complaints relate mainly to the assessment on viability of internal relocation and lack of language assistance.  The complaints have no merits.

20.The Director took into consideration the circumstances of the applicant and the relevant objective COI materials in his evaluation of the viability of internal relocation.  There is no reasonably arguable basis to challenge his finding of availability of internal relocation alternative. The complaint is irrelevant to the decision of the Board which was mainly based on the adverse finding of credibility of the applicant.

21.As regards the language assistance ground, it is well established that the high standards of fairness do not demand interpretation service being made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2019] HKCA 1403.

22.It is noted that the Form 86 and affirmation in support are written in English.  That indicates either the applicant is conversant with English or he is able to access to language assistance.  In any event, he was assisted by an interpreter at the hearing before the Board.  I do not accept the assertion that the alleged lack of language assistance would render the process unfair.

23.The Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of their determinations which are eminently reasonable.

24.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 their decisions. Nor do I see any failure on their part to apply high standards of fairness.

25.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

26.Accordingly, application for leave to apply for judicial review is refused.

Dated 4 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

Form CALL-1