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

HCAL 2745/2018

[2021] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2745 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 12 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 a citizen of India.  He came to Hong Kong illegally and was arrested by police.  He was referred to the Immigration Department.  He lodged non-refoulement claim with the Immigration Department by written signification dated 7 March 2016.

5.He claimed that if refouled, he would be harmed or killed by his uncle because he wanted to occupy his land.  The applicant used to cultivate on the piece of land registered in his father’s name.  After his father passed away, his uncle came to his land in mid-2015 and told him that the land belonged to him.  He then evicted the applicant.  He had attempted to reason with his uncle for the land.  His uncle and his three sons assaulted him with hands and sticks.  He had reported the matter to police.  The police did not register his complaints.  He believed that it was because his uncle was well-connected with the ruling party and he was wealthy.  Upon advice from his parent and friends, he went to China and then to Hong Kong through Shenzhen.  Details of his story 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 8 May 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 upon his return to India was assessed to be low [11]; that reasonable state protection was available to him [21] and internal relocation was an option open to him [24].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 11 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the applicant was found to be not a truthful witness and he had not told the truth, as a result of which, the Board rejected his alleged facts that his uncle or his three sons had threatened, attacked or injured him [94] and that he would not have any risk if he returned to India [96-98].  This conclusion was reached after extensive cross-examination of the applicant’s evidence at the hearing. [28-94]

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 3 December 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 was not satisfied with the Board’s 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 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 9^th day of July 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