Resham Singh v. Torture Claims Appeal Board / Non-refoulement Claims

HCAL 1287/2018

[2021] HKCFI 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1287 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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 25 May 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 5 July 2015. He was arrested by police on 24 July 2015. On 26 July 2015, he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by a person called Ranjit Singh, who is wealthy and influential in the locality. He used to be a member of Shiromani Akali Dal Party (the “SAD”). After Ranjit became the leader of SAD, he was unhappy as Ranjit behaved badly. Ranjit sided with the wealthy people and suppressed the poor. He therefore converted to become member of the Congress Party (“the CP”). Ranjit was very angry about this and he had, together with his subordinates, asked him to join SAD again. He refused whereupon they assaulted him with weapons causing him injuries. They had assaulted him twice, threatening to kill him if he insisted upon joining CP. He had to hide himself in places away from Ranjit. He decided to flee India for Hong Kong. Details of the incidents are set out in paragraphs 25-42 of the Board’s Decision.

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 26 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Ranjit upon his return to India was assessed to be low [12]; that state protection was available to him [16] and internal relocation was an option open to him [24].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 29 March 2018.

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

(1)  Having considered the applicant’s evidence, the Board did not accept his evidence to be true because there were many implausibilities and contradictions. See paragraphs [47 – 55].

(2)  The evidence that he had given to the immigration officer contradicted that given at the hearing [55].

(3)  For those reasons, the Board rejected his claim on Persecution risk [57(A)(c)], BOR 3 risk [57B(c)], Torture risk [57C(c)] and BOR risk [57D(a)].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 5 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he attached a copy of the Board’s Decision for this Court’s consideration and said no more.

DISCUSSION

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

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.He has not set out any ground in support of his application in his affirmation.

15.Since the Board rejected his evidence on the facts of his case, he has no factual basis in support of his claim.

16.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.

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

CONCLUSION

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

Dated the 18^th 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

Form CALL-1