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

HCAL 2681/2018

[2021] HKCFI 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2681 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 14 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. He came to Hong Kong illegally on 14 February 2016 and was arrested by police the same day.  On 18 February 2016, he lodged his non-refoulement claim with the Immigration Department by written representation.

5.He claimed that if refouled, he would be harmed or killed by his paternal uncle, Raju, because of a land dispute with him.  In 1993, his father had bought a piece of land, which was left uncultivated.  One day in the summer of 2012, his uncle came to talk to his father and asked him to share the land with him.  His father refused.  Between 2012 to 2015, his uncle approached the applicant from time to time and asked him to transfer his share of land to him. He said that the land belonged to his father.  In November 2015, his uncle’s sons approached him and demanded a share of the land.  He told them that it belonged to his father. They assaulted him with sticks and injured him.  He fell unconscious.  He was rescued by another uncle.  Two weeks later, he was again assaulted by his uncle’s son and was assaulted with punches.  His wife advised him to live in his in-law’s premises. He did so.  Later, his brother-in-law advised him to come to Hong Kong.  Details of the story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decisions

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 13 April 2018 (“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 or being killed by his uncle if he returned to India was assessed to be low [15]; that state protection was available to him [21] and internal relocation was an option open to him [28].

The Board’s decision

8.The applicant appealed against the Director’s Decision to the Board. He attended the hearing before the Board on 3 August 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that it rejected the facts as alleged by the applicant and found that his family was never involved in a land dispute with an uncle called Raju and his sons; that he had never been threatened or assaulted by his cousins.  See paragraphs 88-103.  The Board went further that in case it was wrong in the facts of the case, it considered that internal relocation was open to him. [106]

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 said that he wanted to review the Board’s Decision because he still has problem and that he is not safe in India.

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 12^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