Sukhpreet Singh v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 189/2019

[2021] HKCFI 3274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 189 of 2019

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 16 January 2019 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”), the matter is dealt with 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 Bangladesh.  He entered Hong Kong illegally on 27 October 2015 and was arrested by the police on the same date.  He lodged a non-refoulement claim with the Immigration Department on 1 November 2015. 

5.He claimed that if refouled, he would be harmed or killed by members of Awami League (“AL”) for his membership with the Bangladesh Nationalist Party (“BNP”) and for his failure to pay the extortion money.  He also claimed a source of fear from his creditors, Liton, Noyon and Raqib (“the Creditors”) for his default in repayment of the loan. 

6.The applicant alleged that in around 2010 to 2011, five AL members came to his factories to demand for donation.  The applicant originally complied with the demands as the amount was small.  In around 2013, the applicant’s support of BNP in a general election angered AL members, who sent gangsters to disturb the BNP members. The applicant was beaten up, leading to an 8-days hospitalization.  Meanwhile, the AL members started to demand more for the donations and attack the applicant for disobeying.  The applicant suffered swellings and bruises. Further, in around February 2015, the Creditors located the applicant and demanded the repayment for the debt.  He was unable to do so and received death threats from the Creditors.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 12 of the Director’s Decision described below and paragraphs 18-36 of the Board’s Decision.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 20 June 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 him being harmed or killed by the AL members and the Creditors if he returned to Bangladesh was assessed to be low [18]-[24]; that state protection was available to him [25]-[31] and that internal relocation was an option open to him [32]-[41].

The Board’s Decision

9.The applicant appealed against the Director’s Decision.  He appeared before the Board on 17 August 2018, during which the applicant adopted all the information contained in the Hearing Bundle placed before the Board. 

10.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board considered the aforesaid applicable grounds: it found that, while the applicant was threatened by the AL members in 2006 when he first joined the BNP, none of them actually carried out any attack in the following two years [42]; that the extortion of money was not politically affiliated [43]; that the two attacks in December 2013 was either an one-off incident or not related to the applicant’s membership in the BNP [44]-[45]; that the Creditor had no intention to kill him [46]. 

11.Thus, it concluded that the applicant’s claim under Torture risk failed [50].  Further, for the same reasons, the Board rejected his claims on BOR 3 risk [51]-[52], BOR 2 risk [53] and Persecution risk [54]-[56].  In any event, internal relocation was available to the applicant since he had once stayed in Sylhet safely [57]-[61].  As a result, the Board concluded that his appeal was unsubstantiated.   

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that the Board’s Decision was unreasonable.  It had not considered all the matters raised in his claim and there was no adequate reasons for its Decision.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.He has submitted no valid ground to assist his application.  As seen from above, the Board had considered the Director’s Decision and his evidence and had given its reasons for its Decision.

18.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.

19.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 5^th day of November 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