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

HCAL 1357/2018

[2021] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1357 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 2 November 2016.  He overstayed and surrendered to the Immigration Department on 17 November 2016.  He lodged his non-refoulement claim to the Immigration Department by way of written of representations of 20 and 21 March 2017.

5.He claimed that if refouled, he would be harmed by the members of Bharatiya Janata Party (“BJP”) Youth Party as they accused him of being the one who was behind the attack of one of the BJP Youth Party members, Gagan which caused his death.  He was a member of the Congress Youth Party.  BJP was jealous that people joined his party and the members had a fight.  During the fight, a member of BJP called Gagan was hit on the head.  He was taken to hospital and dead.  The BJP members considered that he was the one who had hit Gagan’s head.  But in fact, he was not.  He was tracked down by the BJP members on two occasions.  They were armed with weapons such as knives and guns.  He managed to avoid them.  He moved to live in his aunt’s house.  He was worried and upon suggestion of his friend, he came to Hong Kong.  Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

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 November 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 the BJP people upon his return to India was assessed to be low [12]; that state protection was available to him [15] and internal relocation was an option open to him [22].

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 applicant had not made out a case in respect of any of his four grounds. [46]

(2)   There was no ground in support of the fact that he would be subjected to Persecution risk. [56]

(3)   He had not shown that there were substantial grounds for believing that his life would be at real risk if he were refouled to India.  [59]

(4)   The Board did not accept that there were substantial grounds for believing that he would face a real risk of being subjected to torture or BOR 3 risk if he returned to India. [63]

(5)   The Board did not accept that there were substantial grounds for believing that he would be liable to torture as defined in section 37U of the Ordinance if he returned to India. [71]

(6)   Internal relocation was an option open to him. [79]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 11 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that his case should be further reviewed in his favour.

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 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 8^th day of April 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