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

HCAL 1553/2018

[2021] HKCFI 3696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1553 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 24 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”), 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 India.  He entered Hong Kong illegally on 8 December 2015 and was arrested on the same date.  He lodged a non-refoulement claim on 11 December 2015. 

5.The applicant claimed that if refouled, he would be harmed or killed by Jagdish Singh (“JS”) because of a land dispute.  According to the applicant, JS belonged to Shiromani Akali Dal Party (“SAD”) and was close to Thandal, who was a Member of the Legislative Assembly.  In February 2010, after the applicant’s mother passed away, JS sought to possess the applicant’s land, Plot M.  In May 2013, while the applicant was in Dubai, his wife was attacked by JS’s son, Happy, and suffered hip fracture because she attempted to stop JS’s construction projects on Plot M.  In November 2014, when the applicant went to negotiate with JS and Happy, Happy attacked him with a metal rod and the applicant suffered head injuries and received stitches in hospital. Thereafter, the applicant resolved to court proceedings to solve the land dispute.  Moreover, the applicant claimed to be mentally harassed by his wife’s business partners due to a business dispute.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraph 7 of the Board’s Decision.

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 26 July 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 JS and his son upon refoulement was assessed to be low [11]-[15]; that state protection was available to him [16] and that internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He appeared before the Board on 24 May 2018 and testified before the Board.  The Board accepted the applicant’s evidence that there was a land dispute with JS and that his wife told him that she was injured by JS’s son; that his wife informed him that she had lost their savings; that he had commenced civil proceedings in court against JS and his son and that the dispute among them had led to the assault against the applicant who suffered open wound and received stitches for the head injury [12].  However, the Board found that the material aspects of the applicant’s claim exaggerated and were inconsistent with his previous statements.  For example, the Board found that the applicant’s wife might exaggerate her hip injury and there was no supporting medical evidence; it also found that the applicant exaggerated the extent of his head injury and his days of hospitalization; further, the Board found that there was no evidence showing that the applicant could assert ownership of Plot M. As to the claim against the wife’s business partners, the Board found that there was no documentary evidence of the alleged business dispute.  In any event, the Board found that there was no evidence suggesting that JS had any intention to hunt him down in other villages and that it refused to accept that the applicant relocated to his wife’s village to avoid JS [13].   

9.The Board found that, after examining JS’s past conducts, they did not amount to a real risk of harm as claimed by the applicant.  In regards to the wife’s business partners, even taking the applicant’s claim to the highest, the alleged harassment did not warrant his concern that they would kill him or cause him grave harm.  If they wished to do so, they could have done that before the applicant fled to Hong Kong [19(a)-19(i)].  Further, the Board found that state protection was available to the applicant [19(j)-19(r)].  In any event, internal relocation was available to the applicant [19(s)-19(v)].  Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal [20]-[32].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 6 August 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 the Board had disregarded his dangerous situation.

DISCUSSION

12.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).

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

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1).… …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.”

15.He has submitted no valid ground to assist his application.  The Board has reject his evidence on the factual basis of his claim.  He therefore has no factual basis in support of his claim.

16.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.

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

CONCLUSION

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

Dated the 15^th day of December 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