Sarbjeet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Antoher

HCAL 596/2019

[2021] HKCFI 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 596 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 1990, is a national of India.  He arrived in Hong Kong in February 2013 and was permitted to remain for 14 days.  He overstayed and remained in Hong Kong unlawfully undetected for 4 years and 10 months.  On 23 December 2017, he was arrested by the police when he was working illegally and using an ID card relating to another.  He was convicted and sentence to 15 months’ imprisonment.  On 3 October 2018, he lodged a non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2-3] 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 Shiromani Akali Dal Party (“SAD”). He claimed that his father belonged to another political party, Aam Aadmi Party (“AAP”).  His father was a candidate running in the election in March 2013 for the position of council head in his village, representing AAP.  His opposition candidates were Shubeg from SAD and Beldev from another party.  The applicant helped his father in the election.  Since July 2012, Shubeg and Beldev had put pressure on his father to withdraw from the election but his father refused.  In around August 2012, while he was working on the farmland with his father and his uncle, a group of about 10-12 people including Shubeg and Beldev came and fired shots, killing his uncle, and a shrapnel had entered the applicant’s right thigh.  He grabbed a sickle and cut off 4 fingers of Beldev^[1],. One or two days later, some men came to his home threatening that Shubeg would take revenge.  In order to avoid Shubeg, he took a bus to another area staying there for about 5.5 months until he left for Hong Kong.

The Director’s decision

4.By a notice of decision dated 21 December 2018, 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^[2], BOR 2 risk^[3], BOR 3 risk^[4], and persecution risk^[5]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant chose not to have a hearing before the Board. He wrote to the Board on 7 January 2019 saying “I am humbly requesting you to proceed my appeal hearing without my present and I will duly accept the outcome of your decision on my appeal” (sic). [4,17].

6.By a decision dated 22 February 2019, 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 [5-31] of its decision.  In a nutshell, the Board found:

(1)  the assault on him did not reach the minimum level of severity as required by law [10];

(2)  Shubeg and Beldev would not be interested in locating him all over India after more than 6 years [18];

(3)  he would be safe to live in places other than in his home locality [24];

(4)  COI showed there would be reasonable availability of state protection [29];

(5)  in any event, the details in his alleged story were “either missing or woefully vague” with no evidence in support [31.1-3];

(6)  he lodged his claim long after his arrival in Hong Kong [31.7-10]; and

(7)  in conclusion, the Board did not accept his story and therefore there was nothing to support his claim [32].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 1 March 2019 for leave to apply for judicial review.  In the Form 86, the applicant set out no ground for the relief sought.  In his affirmation in support, he said “The decision is unfair and unreasonable.  My life is in danger and I might get killed if I sent back to my country.  Please kindly consider my application”.  He did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

9.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.

10.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 examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  Thisdecision will only focus on discussing the Board’s decision.

11.In the present case, the Board in fact rejected the applicant’s appeal/ petition as it did not accept the applicant’s claimed events because his version of case lacked details and was woefully vague.  It was a bare assertion with no evidence in support.  His claim for protection almost 5 years after his arrival in Hong Kong also casts doubt on the genuineness of his claim.  In any event, it found that state protection and internal relocation are available to the applicant.  The COI also showed no substantial risk or any substantial basis of fear.  On the factual findings, it concluded that there was no basis for the applicant’s fear.

12.As explained above, assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation are all 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.

13.The applicant chose not to have a hearing of his appeal.  The Board was not improper or unreasonable to determine his credibility and his claim adversely on the information before it.  His conduct of lodging his claim for protection almost 5 years after his arrival in Hong Kong indeed damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.  On the information before the Board, its findings and determination are eminently reasonable.

14.The general ground raised by the applicant is only a general and vague assertion, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense. It cannot constitute a valid ground of review.

15.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.

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

Disposition

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

Dated 9 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