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

HCAL 1362/2018

[2021] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1362 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 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 as a visitor on 26 December 2012.  He overstayed and was arrested by the Immigration Department on 26 November 2013.  He lodged a non-refoulement claim with the Immigration Department on 4 January 2014.

5.He claimed that if refouled, he would be harmed or killed by his creditor called Lakhwinder, who is well-connected with the police in India because he was unable to repay a loan of rupee 1 million from Lakhwinder in June 2012.  He borrowed the money for running his printing business.  His business was not good and he was unable to repay the money.  In September 2012, Lakhwinder brought three men to his house to press him for repayment.  They allowed him time to repay and did not hurt him on that occasion.  They kept on pressing him for repayment.  During the period between October 2012, he was kidnapped by Lakhwinder’s men to a secret place.  He managed to release himself and ran away.  He reported the matter to police, who took no action other than taking some particulars from him.  In early December 2012, Lakhwinder came with his men to his house where they hit him with hockey sticks.  He was injured and had bruises on his left arm and left leg.  Feeling unsafe, he left India for Hong Kong on 20 December 2012.  Details of the incidents are set out in paragraphs 26-52 of the Board’s Decision or paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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

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

2.  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”);

3.  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

4.  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 October 2017 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by Lakhwinder upon his return to India [11]; that state protection was available to him [14] and internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing before the Board on 14 June 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)   The Board accepted the applicant’s evidence that he had borrowed loans from Lakhwinder in March and June 2012 and that he failed to repay. [64]

(2)   The Board did not accept that Lakhwinder was connected with any political party or with the police. [67-68]

(3)   The Board accepted that he had twice been assaulted by Lakhwinder and his people. [74] But there was no evidence that any attempt was made to carry out the threat to kill him or to seriously harm him. [75]

(4)   There was no evidence that police were involved in the incidents. [76]

(5)   Based on the facts above, the Board found there was no Convention reason for him to claim Persecution risk [77]; that his life would be at risk for BOR 2 risk [80]; that Lakhwinder would pose risk of BOR 3 risk on him [86] and that he would be subjected to torture within the context of 37U of the Ordinance [94].

(6)   Internal relocation was an option open to him. [104]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 12 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 he could not go back to his country at the moment because his life was not safe.

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 ground in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

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 31^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