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

HCAL 2680/2018

[2021] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2680 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 20 November 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. The last time he came to Hong Kong was on 30 June 2014 as a visitor. He overstayed and was arrested by police on 13 May 2015. On 15 May 2015, he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed by his uncle Sahib Singh, who wanted to obtain his land. He was given the land by his father. His uncle wanted to obtain his land, which is more valuable. He refused. There were some instances of scuffling between him and his uncle. He was not injured on each of the occasions. Shortly before he came to Hong Kong in June 2014, his uncle and 10 to 12 people came to attack him in his village with punches and wooden sticks. He suffered bruises and injuries on his upper lips and right elbow. He was hospitalized for one day. He was afraid that his uncle would harm him again. He left India for Hong Kong. Details of his story are set out in paragraph 7 of the Director’s Decision as 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 23 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that his evidence was inconsistent and incredible [18]; that the level of risk of harm or being killed if he returned to India was assessed to be low [22]; that state protection was available to him [24] and internal relocation was an option open to him [35].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 31 August 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. Paragraph 93 succinctly summarizes the reasons:

“93. Taking all these matters into account, it is not considered that the Appellant faces a high risk that he will be subjected to harm should he return to India. This conclusion is strengthened in light of the Appellant’s concession that he could now return to India without fear and also relocate elsewhere in the country without fear.”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 26 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he attached the Board’s Decision only.

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 6^th day of May 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