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

HCAL 1319/2018

[2021] HKCFI 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1319 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 4 July 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 illegally on 13 April 2013 and was arrested by police on 29 June 2013. He lodged his non-refoulement claim with the Immigration Department on 20 May 2016.

5.He claimed that if refouled, he would be harmed by the people of the Indian National Congress (“INC”) because of a land dispute. The INC people wanted to buy his father’s land at a lower-than-market price. His father refused. When they tried to use the land without his father’s permission, he intervened and had a fight with them. He was injured. They threatened to take away the land. Thereafter, he was attacked in March 2012. Those people threatened to kill him. In September 2012, he was also attacked by some unknown people, whom he suspected to be the INC people. In early 2013, he moved to stay with his paternal aunt. He decided to leave India for Hong Kong for safety. Details of the incidents are set out in the Director’s Decision described below at §6 or the Board’s Decision at §§28-42.

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 16 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe the claimed risk of harm upon his return to India [12]; that state protection was available to him [15] and that internal relocation was an option open to him [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and he attended the hearing on 11 June 2018.

9.By the Board’s Decision, his appeal was dismissed for the reasons as set out below.

(1)  His evidence was inconsistent in significant aspects.

(2)  His evidence in his statement was in contradiction with his evidence in the hearing.

(3)  The Board did not accept that there were grounds for believing there was a real risk that the applicant would suffer harm amounting to persecution if he was refouled to India. Even if he were to be pursued on his return, it would not be for a Convention reason. For those reasons, his claim on Persecution risk was rejected. [65]

(4)  There was no evidence that the state was involved. BOR 2 risk was rejected. [67-68]

(5)  There were no substantial grounds for believing the applicant would face a real risk of being subjected to torture or BOR 3 risk. [72]

(6)  State protection would be available to him and there were no substantial grounds for believing that he would be liable to torture as defined in section 37U of the Ordinance if he returned to India. [80]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 9 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the decision of the director of Immigration [the Board] was unreasonable in that he failed to consider the matters raised in his claim and /or give adequate reason for his decision.

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.His grounds in support of his application are only his opinions without any evidence in support of them. The Board had clearly considered his case and given its reasons in support of its findings. It did not disbelieve all his evidence outright.

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 25^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